State Bar of Arizona Ethics Opinions

89-09: Advertising
11/1989

Committee comments on three proposed targeted, direct mail solicitations.



FACTS

On June 13, 1988, the United States Supreme Court decided Shapero v. Kentucky Bar Association, _____ U.S._____ 108 S. Ct. 1916, 100 L. Ed. 2d 475 (1988). Almost immediately, bar staff and this committee began receiving requests from lawyers to review targeted direct mailings to prospective clients in order to determine whether the proposed mailings complied with our ethical rules. The committee rendered a number of informal opinions. Then, on July 27, 1989, the Arizona Supreme Court adopted, on an emergency basis effective August 1, 1989, an amendment to Rule 42, ER 7.2 and ER 7.3, Rules of the Supreme Court. The amendment conformed our rules to the United States Supreme Court's opinion in Shapero and otherwise instituted new rules governing lawyer advertising and direct contact with prospective clients. In order to provide some uniform guidance to our members, the committee has decided to issue a formal opinion on the ethical propriety of certain targeted direct mailings we have been asked to review. 

Attached as Appendices A, B and C are three randomly selected proposed mailings. References to the identities of the requesting attorneys have been expunged, and the lawyers are described below as Lawyers A, B and C. These lawyers propose to send targeted, direct-mail solicitation to potential clients. The mailings proposed by Lawyers A and B are intended for individuals known to have been involved in recent automobile accidents. Lawyer C's mailings are intended for general dissemination and for individuals with whom Lawyer C has a personal or family relationship or an existing or prior professional association, but in regard to whom Lawyer C is unaware of any existing legal problems akin to those described in his mailings.

 

QUESTION

Do the proposed mailings violate any of the Arizona Rules of Professional Conduct?

 

ETHICAL RULES INVOLVED

ER 7.1.           Communication Concerning a Lawyer's Services

ER 7.2(e) and (f).     Advertising[1]

ER 7.3.           Direct Contact with Prospective Clients

  

OPINION

In Shapero, a member of the Kentucky Bar sought to contact by letter potential clients known to the attorney to be facing foreclosures. The Kentucky Supreme Court upheld, although on different grounds, the Bar Committee on Legal Ethics' advisory opinion that the attorney's letter constituted an ethical violation. The Kentucky court's ruling was based on a Kentucky ethics rule nearly identical to our former ER 7.3. The United States Supreme Court reversed the holding of the Kentucky court and invalidated the Kentucky rule as violative of the First Amendment, made applicable to the states through the Fourteenth Amendment. Shapero, 108 S. Ct. at 1920. The Court held that a state cannot ban a lawyer's use of truthful, nondeceptive letters to solicit business from clients with known legal problems. Id. at 1923.

The Court, in Shapero, struck down a categorical ban on nondeceptive written solicitation. The opinion did not effectively change ethical rules that pertain to in-person or telephone solicitation. Neither does Shapero recall from a state the authority to prevent false or misleading advertisement. Shapero does not forbid regulation that may be required to protect the public or preserve the integrity of the profession. Nor does it prohibit reasonable requirements in furtherance of these objectives.

Although the mailings proposed by the three lawyers here are different, many of the issues raised by the mailings are the same. Accordingly, the mailings will be analyzed together, and the ethical issues will be examined in the order in which they are raised by the proposed mailing of Lawyer A.

For better or for worse, Shapero constitutionally protects targeted direct mailings to prospective clients. Much of what is written in the attached mailings are truthful nondeceptive statements to solicit business. From time to time, however, the mailings stray into false and misleading statements. In reaching this conclusion, the committee has kept in mind the Court's comments in Bates v. State Bar of Arizona, 433. U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977), that what constitutes a false or misleading communication in the context of lawyer advertising may be stricter than in other fields, because "the public lacks sophistication concerning legal services, [and] misstatements that might be overlooked or deemed unimportant in other advertising may be found quite inappropriate in legal advertising." 97 S. Ct. at 2709. Following this vein, some portions of the mailings must be rewritten; other portions must be omitted.

Lawyer A has submitted for review two letters and two brochures. One of the letters and one of the brochures is intended for motor vehicle operators involved in automobile accidents (the "vehicle operator letter" and "vehicle operator brochure"). The other letter and corresponding brochure are intended for vehicle passengers involved in automobile accidents (the "passenger letter" and "passenger brochure"). Lawyer B's mailing consists of one letter and one brochure (the "Lawyer B letter" and "Lawyer B brochure"), intended for passengers and motor vehicle operators alike. Lawyer C's mailing is a single, 18-page brochure (the "Lawyer C brochure").

ER 7.3(b) requires that solicitation letters be clearly identified as advertisements:

Subject to the requirements of ER 7.1 and ER 7.2, and paragraph (c) herein, a lawyer may initiate written communication, not involving personal or telephone contact, with persons known to need legal services of the kind provided by the lawyer in a particular matter, for the purpose of obtaining professional employment. Such written communication shall be clearly marked on the envelope and on the first page of the communication contained in the envelope, as follows:

ADVERTISING MATERIAL:

THIS COMMERCIAL SOLICITATION HAS NOT BEEN

APPROVED BY THE STATE. BAR OF ARIZONA

Said notification shall be printed in red ink, in all capital letters, in type size at least double that used in the body of the communication. If the solicitation advertises representation on a contingent or "no recovery, no fee" basis, it shall also state that the client may be liable for costs and expenses.

None of the letters or brochures complies with ER 7.3(b). Lawyer C's brochure does not have to include the required language, however, because it is a general mailing not speaking to a specific matter and thus does not pose the same danger of abuse as the other proposed mailings. See ER 7.3, Comment.

ER 7.1 prohibits communications that are misleading by misrepresentation or by omission:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it:

(a), Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading [.]

*****

The first paragraph of Lawyer A's letters advises the recipient that his or her automobile accident has come to the lawyer's attention and that he has a police report. Similarly, Lawyer B's letter advises the recipient in the first paragraph that Lawyer B has "learned" of the recipient's accident. In the final paragraph of Lawyer B's letter, the recipient is further advised that a copy of the relevant accident report is enclosed.

These statements in the two letters, without more explanation, could easily lead to erroneous conclusions. A lay person may not know that a police report is a public record, accessible by anyone. To the unsophisticated lay person, therefore, these statements may imply that the lawyers know more about the recipient's case than they actually do. These statements could further imply that the investigating police officer has referred the matter to the attorneys authoring the letters. This may, in turn, suggest to the recipient that officially those attorneys are "supposed to" handle the cases, that the police recommend such representation, and that perhaps those attorneys have a contact at the police department. Furthermore, these statements could imply that the "recipient's legal problem is more dire than it really is." Shapero, 108 S. Ct. at 1923. Thus, this portion of the letters constitutes a statement that is misleading by omission under ER 7.1(a).

To avoid these problems, targeted solicitation letters should provide clear information on how the recipient's name was obtained and how the soliciting lawyer knows of the recipient's possible legal problem. The disclosure should be sufficient to avoid any confusion or misconception about the lawyer's relationship with other entities involved in the matter, about the lawyer's familiarity with the case, and the lawyer's motivation in contacting the recipient. See 108 S. Ct., at 1923, 1924. The letters should clearly advise the recipient that the lawyers obtained their information from publicly available police reports for the purpose of soliciting business if that is, in fact, the case.

The first paragraph of Lawyer A's vehicle operator letter and the first paragraph of Lawyer B's letter are misleading. There, the former refers to "our investigation," and the latter to "our initial review of your accident." Inaccurate inferences are easy to draw from these statements. One inference is that the attorneys have already conducted some kind of investigation beyond simply reading the police report. A second inference is that the attorneys are in possession of or have knowledge of evidence that another attorney may not independently discover. Because of these inferences, the statements are misleading under ER 7.1(a).

The statements analyzed in the preceding paragraph also violate ER 7.2(f) (3). That rule precludes communication with a prospective client that involves "coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence [.]” Falsely implying that an investigation has been undertaken on the recipient's behalf is overreaching. It may make a potential client feel indebted to the lawyer and obligated to accept unwanted services. Such undue influence is prohibited by ER 7.2(f) (3). When referring to their reading of the police report, the lawyers should simply state that they have read the report.

The second paragraph of Lawyer A's vehicle operator letter is misleading. There, Lawyer A warns the recipient that he or she will probably need the accident report to get the insurance company to pay for the recipient's damages. This assertion is not true. There is no requirement that a claimant obtain a police report to settle a claim. The statement is, therefore, false and misleading under ER 7.1(a).

The second paragraph of Lawyer A's vehicle operator letter is improper in another respect. By sending only a partial copy of the police report, the recipient is virtually compelled to call the attorney to obtain the remainder of the report. The recipient is being told that a police report is necessary and that the attorney has the police report. The recipient is baited with part of the report and is advised of no means of obtaining the rest, except by calling the lawyer. The recipient is practically forced to call. Withholding information on how to obtain a police report under these circumstances is exerting undue influence, is coercive, and is overreaching under ER 7.2(f) (3). When a lawyer includes with a solicitation letter a purportedly vital document, the lawyer should provide the entire document.

Section four of Lawyer A's brochures, paragraph two of Lawyer B's brochure, and paragraph two, page nine, of Lawyer C's brochure, are misleading. There, the lawyers assure the prospective client that the absence of medical insurance is not a problem. The lawyers advise the prospective client that he or she will be referred to physicians who do not bill until the case is settled. The attorneys make no mention of the consequences of receiving no recovery at all, yet the recipient has been told not to worry. The implication is that, if there is no recovery at all and no medical insurance, the treating physician to whom referral has been made will not expect payment for services rendered. To avoid this misconception, the lawyers should accompany their assurances with an explanation of the client's ultimate responsibility for medical expenses.

Failure to disclose such information is not only misleading by omission, but is misleading because it creates unjustified expectations on the part of the potential client. ER 7.1(b) provides that "[a] communication is false or misleading if it...is likely to create an unjustified expectation about results the lawyer can achieve.... “Failure to accurately disclose a prospective client's obligation for medical expenses, under the circumstances of these communications, violates ER 7.1(b). Such failure induces the prospective client to believe association with the soliciting lawyer will avoid ultimate responsibility for medical expenses.

In section five of Lawyer A's passenger brochure, Lawyer A states that the passenger may collect from “both drivers' insurance companies.” The way this part of section five is phrased suggests to the layman the distinct possibility of a double recovery. This part of section five is likely to create an unjustified expectation and is therefore misleading. ER 7.1(b).

Section five of Lawyer A's brochures also refers to insurance companies as an "army" bent on "fighting" claimants and sufficiently equipped to "wear down" claimants. In Matter of Zang, 154 Ariz. 134, 146, 741 P.2d 267, 279 (1987), the Arizona Supreme Court stated:

Advertisements are likely to minimize the danger of violating ER 7.1 if they are designed to inform consumers of their rights and of the methods available to meet legal problems and crises; to inform the public of the availability and costs of services; or to convey accurate information relevant to making informed, rational choices of counsel, including information about counsel's availability and areas of practice. (citations omitted) In the future, the bar should examine lawyers' advertisements to determine whether, taken as a whole, they are predominantly informational or are simply emotional, irrational sales pitches. While the latter may not be prohibited by ER 7.1, they should be examined carefully to assure that they are neither false nor misleading. (emphasis supplied)

The hyperbole contained in section five of Lawyer A's brochures is not primarily informational. It is more in the nature of an emotional sales pitch, the ethical propriety of which we addressed recently in our Opinion No. 89-07 (8/25/89). There, an attorney wished to use the slogan "We take the pain out of accidents" in printed advertisements and on his firm letterhead. We concluded that, because the ordinary consumer would not take the slogan as literally true, the slogan was not likely to create an unjustified expectation in the mind of the ordinary consumer and was thus not false or misleading. We held that the proposed slogan did not violate ER 7.1, even though it lacked dignity (see ER 7.1, Comment) and did not provide any useful information which would help an informed consumer make rational choices. The exaggerated, emotional sales pitch here is similar. The characterizations are not likely to be taken as literally true by the ordinary consumer and are thus not false and misleading or "overreaching." See ER 7.2(f) (3). However, Opinion No. 89-07 made the point that:

Although, under applicable constitutional standards, a lawyer may engage in certain types of conduct which may be protected even though undignified, we hope that all members of the Bar will strive to uphold the dignity of the profession and conform their conduct to the highest possible ethical standards, not the minimum constitutional standards.

The sentiment applies equally to the type of emotional sales pitch considered here.

Section six of Lawyer A's brochures and the middle of page eighteen of Lawyer C's brochure are misleading by omission and by the creation of unjustified expectations. There, the lawyers assure the recipient that there is no risk to a client in the event of losing a case, except, in Lawyer A's brochures, that "costs, if any, are additional" and, in Lawyer C's brochure, that "costs are additional.” The client's obligation for costs is mandated by ER 1.8(e) (1). This obligation must be made clear in a solicitation in which fees are discussed. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 653, 105 S. Ct. 2265, 2282-2283, 85 L. Ed. 2d 652 (1985); Arizona Opinion No. 87-18 (8/28/87). Lawyer A's and Lawyer C's references to a client's obligation for costs are not clear. Saying simply that "costs are additional" is not sufficient. If the subject of risks or fees is broached at all, the message must be clear that litigation has monetary risks and that the client is ultimately liable for costs and expenses no matter what the outcome may be. Furthermore, a clear distinction must be made between fees and costs, such that a lay person can appreciate it. Zauderer, 471 U.S. at 653, 105 S. Ct. at 2282-2283; ER 7.3(b); Arizona Opinion No. 87-18 (8/28/87).

The third from last capitalized paragraph at the second page of Lawyer B's brochure is slightly more clear on the issue of the client's obligation for costs than the others. However, even that reference is too brief and vague.

Section seven of Lawyer A's brochures, the last line of paragraph three of Lawyer B's letter, and pages five through fourteen of Lawyer C's brochure contain exaggerated claims of the lawyers' ability to obtain recovery. ER 7.1(b) defines as misleading any communication that "is likely to create an unjustified expectation about results the lawyer can achieve [.]" Referring to recovery "many times more than just your medical bills," as Lawyer A's brochure does, before a liability investigation is even under way, creates an unjustified expectation. Similarly, Lawyer B's unqualified claim that "we can negotiate and/or litigate... your claim to . . . obtain a fair recovery for all your injuries and life disruption, not just your expenses [,]" is a violation of ER 7.1(b). Lawyer C also enumerates rights of recovery without qualifying them at all. Even the Shapero court conceded that "a letter may be misleading if it unduly emphasizes ... relatively uninformative facts...or offers overblown assurances of client satisfaction.... “Shapero, 108 S. Ct. at 1925.

The lawyers may ethically refer to recognized damages, such as medical expenses, lost wages, etc., but if they do they should warn the potential client that recovery of those damages depends on the liability of the other party and on the recipient's own fault. Put simply, written advertisement should approach the topic of client satisfaction factually and not in a way designed to create unjustified expectations.

Paragraph two of section seven of Lawyer A's vehicle operator brochure informs the reader that an insurance company is "usually willing to... pay... your medical bills." A counterpart to this excerpt is found in section five of the passenger brochure.. If the lawyer's personal experience is that insurance companies are usually willing to pay only medical expenses, he might say, "In my experience . ." And sometimes an insurance company is willing to pay only medical bills. But the statement that an insurance company is "usually willing to... pay... your medical bills" is, at best, debatable and therefore misleading.

On page eighteen of Lawyer C's brochure, the lawyer lists his law degrees, including a parenthetical note that he graduated with honors in "Insurance Litigation." This committee is unaware of any such major at any law school. If no such major or area of emphasis existed at the school, Lawyer C must delete the cited credentials.

All three mailings make offers of free legal advice. Lawyer A, for example, offers to provide a "complete will (including a Living Will)" to any recipient who calls within 24 hours, provided the lawyer takes the case.

The provision of free legal services to those who cannot otherwise afford such services is to be encouraged. See ER 6.1. However, the committee will review offers of free advice to determine if they are, in fact, free. The unconditional offers by lawyers B and C to provide free initial consultations concerning the automobile accidents promotes competition and, in many cases, results in the provision of legal services to those who could not otherwise afford such services. The services provided are truly “free.” But when the services are "free" only when the recipient calls within 24 hours and only if the recipient agrees to have the lawyer represent him in the personal injury case, the services are not, in fact, "free." Such an offer is misleading to the lay person who lacks sophistication concerning legal services." Bates, 350 U.S. at 383, 97 S. Ct. at 2709. It would be permissible simply to state that a lawyer would provide a will at no additional charge if the lawyer took the case. The committee views time limitations on such an offer as coercive and overreaching, however.

If truly free legal services, such as a will, are provided to a direct mail recipient, such services must be rendered competently and diligently. See ER 1.1 and ER 1.3. In the present case, the will would indeed have to be a "complete" will, drafted after consultation with the client as to the client's particular needs.

Shapero constitutionally protects targeted direct mailings to prospective clients. The type of written communications proposed by the three lawyers is ethical. Much of what is written in the three brochures constitutes protected speech and is in compliance with our Rules of Professional Conduct. Unfortunately, some of what is written is misleading under ER 7.1 or constitutes overreaching under ER 7.2(f) (3). Simple redrafting in accordance with this opinion will eliminate some of the objectionable items. Others will have to be omitted altogether. Either way, the objections must be remedied before the proposed mailings are sent. Copies of Lawyer A's and Lawyer B's mailings must be forwarded to the Clerk of the Arizona Supreme Court and to the State Bar of Arizona at its Phoenix office. ER 7.3(c).

Dear F2:

You were in an auto accident that has recently come to our attention. Our investigation, based on the police officer's report, shows that the accident was probably not your fault. The report also indicated that you may have been injured. If you were hurt, we hope that you are receiving good medical care, and wish you a speedy recovery as well.

I'm sending you a partial copy of your police accident report. (If you would like a complete copy, just give me a call at_____________, and I’ll mail you one free.) You'll probably need your accident report to get the insurance company to fix your car and pay for your injuries.

If you would like some free legal advice over the phone about the best way to get your car fixed, get good medical care, or receive compensation for your injuries, just give me a call at_________. (If you are already represented by an attorney, you may disregard this letter.)

Many of your questions are answered in the brochure I've included called "What You Need to Know After You've Had An Accident.” Of course, our brochure can't possibly answer all your questions, so please call me at_________ if you would like to discuss your accident situation for free. If I'm not available for some reason when you call, please ask for _____________, the legal assistant I've asked to assist me with your case. Either of us will be happy to talk to you when you call. Remember, you don't have to come in. Just give me a call at ______________.

Very truly yours,

P.S.     Let me mention that if you call us within 24 hours of receiving this letter and we take your case, we will provide you with a complete will (including a Living Will) at absolutely no charge to you.

PI. Ltr

05/01/89

APPENDIX A

WHAT YOU NEED TO KNOW AFTER YOU'VE HAD AN ACCIDENT

1. Do I even need a lawyer?

Maybe not. Our preliminary investigation shows that you were probably injured. However, if you weren't injured, you probably don't need an attorney. You may still run into problems negotiating with the insurance company to repair your car or get a rental car. Very often, you'll feel that the insurance company doesn't want to give you what you feel your car is really worth. Also, the insurance company often doesn't provide you with a rental car as fast as they should. If this happens to you, go ahead and call me: I'll give you some tips on dealing with the insurance company, but you probably won't need me or any other lawyer to handle your case unless you were injured.

2. But I was injured, what should I do?

If you were injured (and that includes whiplash) the most important thing is you and your health. Make sure you are getting good medical care. If you need a referral, the best place to start is with your family doctor. We also know many competent doctors so you can call us for our recommendations as well. (Unlike most doctors, we even make house calls if your health does not allow you to travel.)

People often want to know how much money they can get from an accident settlement. Of course, we obtain settlements for our clients but we feel the most important thing to our clients is not how much money they get but that we make sure our clients receive the medical care they need to get well as soon as possible.

3. But what if I was not hurt too badly? Why should I go see a doctor and run up a doctor's bill if I am going to get better without seeing a doctor?

_____________________

+Admitted to practice before the Arizona Supreme Court, U.S. District Court, and U.S. Court of Appeals for the Ninth Circuit. Member in good standing of American Bar Association, Arizona Trial Lawyers Association, Maricopa County Bar Association, and the Valley Bar Association.

Mstr-PI.006                                                                                                                4/11/89

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Mother Nature is the best doctor. (Even doctors will tell you that.) However, you are gambling with your health if you have been injured and do not have a professional check you over. Many times there are hidden internal injuries you do not know about. If your neck was snapped in a rear-end collision, for instance, many times symptoms will not show up until days after the accident.

Also, lots of times, the injuries and pain do not get better on their own. If you wait to see a doctor until the pain or injury is unbearable, you may find that the other driver's insurance company will think that you got hurt at work or somewhere else. That is why it is best to check your injuries with a doctor right after the accident and follow your doctor's advice. Then, if you do not get better as expected, you will not have made your case really difficult with the insurance company.

4. But what if I don't have medical insurance?

Don't worry. We can send you to see doctors and therapists who will not bill you until your case is settled. We take care of the insurance paperwork hassles. We can also keep bill collectors from calling you up or harassing you.

5. All right, so you help me with the doctors and the paperwork, but what can you do for me with the other driver’s insurance company and my insurance company that I can't do for myself?

First of all, remember this: No matter how pleasant an insurance adjustor sounds on the phone, an insurance adjustor is going to try to save as much of the insurance company's money as possible. You may often feel that you are not being paid what you are legally owed. Just getting your property damage settled can completely exhaust your patience (which you may have already found out). Then try getting the insurance company to pay you for car rental costs, lost wages, pain and suffering, disability and see how you get treated!

Also remember this: the insurance company has a whole army of professionals (agents, investigators, adjustors, not to mention, their own attorneys!) to fight you with. The insurance company has the resources and money to wear you down if you try to take them on alone.

Just like the insurance company, we are professionals too. Only our main job is to deal with the insurance companies for you and get you everything that you are legally owed.

Mstr-PI.006                                                                                                                4/11/89

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6. Okay, maybe you will take the hassle out of getting me what I am legally owed, but aren't you lawyers real expensive?

First visits to our office are absolutely free. In fact, we don't charge anything for fees if we do not collect money for you so you don't have to pay for our fees out of your pocket. Costs, if any, are additional. We collect our fee from the money we get for you from the insurance companies.

7. Well, but don't you end up taking most of the money I should get?

Absolutely not. We handle your property damage claim absolutely free. We don't charge you a nickel for the money we get you for your car. (You need every cent to get your car fixed.) Even for your bodily injury claim, if your case if settled, our legal fees never exceed one-third of the total settlement. Also, we understand the legal system and we know how to deal with the insurance companies. We can collect for your lost wages, pain and suffering, loss of consortium, and short- or long-term disability. All these things can add up to many times more than just your medical bills. Even after our usual one-third portion is accounted for, you will still end up better off financially in most cases than if you try to take on the insurance company all by yourself. In almost all cases, we can get more from the insurance company than you can on your own.

Of course, the insurance company is usually willing to just pay you for your medical bills and often throw in $250 or $500 even if you don't have any medical bills yet. But, just paying your medical bills hardly compensates you for all the problems and trouble caused by the accident.

8. Okay, but I don’t want to be involved in any lawsuits or going to court.

Don't worry. We never file a lawsuit unless you request it. Also, almost all of all the cases we take are settled (more than 95%) without even beginning a lawsuit.

9. Well, it sounds good and you sound nice, but what if I'm still not sure?

Give me a call at __________ and let's talk together for a little bit. After we talk on the phone, I think you will know for sure if you would like to meet in person to discuss your case at no cost to you. Thanks. I'll be expecting your call. 

Mstr-PI.006                                                                                                                4/11/89

 

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Dear F3:

You were the passenger in an auto accident that has recently come to our attention. The police officer’s report indicated that you may have been injured. If you were hurt, we hope that you are receiving good medical care, and wish you a speedy recovery as well. We can help you get medical care, if necessary, and handle most of the insurance paperwork. Because we're a law office, we can assist you in getting what you are legally entitled to collect including compensation for your medical bills, reimbursement for all your pain, suffering, lost wages and other problems caused by the accident.

If you have any problems or questions about the accident that you need help with, I would be happy to give you free legal advice over the phone. (If you already are represented by an attorney, you may disregard this letter.) I'm sending you a partial copy of your police accident report. (If you would like a complete copy, just give me a call at __________ and I'll mail you a free one.)

I've enclosed a brochure called "What You Need to Know After You've Been a Passenger In An Accident". It tells what you need to know after you've been in an accident; when you probably need a lawyer, and when you don't.

Our brochure can’t possibly answer all your questions. That's why I give free legal advice over the phone. If for some reason I'm not available when you call, please ask for the legal assistant I have asked to assist me with your case. Either _______ or I will be happy to talk to you when you call. Remember, you don't have to come in. Just give me a call at ______________.

Very truly yours,

P.S.     Let me mention that if you call us within 24 hours of receiving this letter and we take your case, we will provide you with a complete will (including a Living Will) at absolutely no charge to you.

 

PASS/PI.ltr

05-01-89

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WHAT YOU NEED TO KNOW WHEN YOU'VE BEEN A PASSENGER IN AN ACCIDENT

1. Do I even need a lawyer?

Maybe not. Our preliminary investigation shows that you were probably injured. However, if you weren't injured, you probably don't need an attorney, but feel free to call me if you're not sure.

2. But I was injured, what should I do?

If you were injured (and that includes whiplash) the most important thing is you and your health. Make sure you are getting good medical care. If you need a referral, the best place to start is with your family doctor. We also know many competent doctors so you can call us for our recommendations as well. (Unlike most doctors, we even make house calls if your health does not allow you to travel.)

People often want to know how much money they can get from an accident settlement. Of course, we can obtain settlements for our clients, but we feel the most important thing to our clients is not how much money they get, but that we make sure our clients receive the medical care they need to get well as soon as possible.

3. But what if I was not hurt too badly? Why should I go see a doctor and run up a doctor's bill if I am going to get better without seeing a doctor?

Mother Nature in the best doctor. (Even doctors will tell you that.) However, you are gambling with your health if you have been injured and do not have a professional check you over. Many times there are hidden internal injuries you do not know about. If your neck was snapped in a rear-end collision, for instance, many times symptoms will not show up until days after the accident.

____________________

+Admitted to practice before the Arizona Supreme Court, U.S. District Court, and U.S. Court of Appeals for the Ninth Circuit. Member in good standing of American Bar Association, Arizona Trial Lawyers Association, Maricopa County Bar Association, and the Valley Bar Association.

Mstr-PI.007                                                                                                                4/11/89

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Also, lots of times, the injuries and pain do not get better on their own. If you wait to see a doctor until the pain or injury is unbearable, you may find that the other driver’s insurance company will claim that you got hurt at work or somewhere else. That is

why it is best to check your injuries with a doctor right after the accident and follow your doctor's advice. Then, if you do not get better as expected, you will not have made your case really difficult with the insurance company.

4. But what if I don't have Medical insurance?

Don't worry. We can send you to see doctors and therapists who will not bill you until your case is settled. We take care of the insurance paperwork hassles. We can also keep bill collectors from calling you up or harassing you.

5. All right, so you help me with the doctors and the paperwork, but what can you do for me with the insurance companies that I can't do for myself?

First of all, remember this: Since you were a passenger in the car, you may be legally entitled to collect from both drivers' insurance companies. You often can collect from the insurance company of the driver who hit you, and from the insurance company of the car you were riding in. If that's still not enough to pay you for your injuries, you often can have your own auto insurance company pay you, even if you were driving in someone else's car! You should always get legal advice before signing a check or a release from an insurance company. You may be throwing away the chance to recover from all the responsible insurance companies, without understanding your legal rights.

Another important thing to remember is this: No matter how nice the insurance adjustor sounds on the phone, an insurance adjustor is going to try to save the insurance company as much money as possible. An insurance adjustor can often leave you feeling that you are not being paid what you are legally owed.

Of course, the insurance company will usually be willing to just pay you for your medical bills and throw in $250 or $500 for pain and suffering, even if you don't have any medical bills yet. But, just paying you your medical bills hardly compensates you for all the problems and trouble caused by the accident. If you try to get the insurance company to pay you for your lost wages, true pain and suffering, and disability, you may feel even stronger that you are not being paid what you are entitled to by law. Also, the insurance company has a whole army of professionals (agents, investigators, adjustors, not to mention, their own attorneys) to fight you with. The insurance company has the resources and money to wear you down if you try to take them on alone.

 

Mstr-PI.007                                                                                                                4/11/89

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Just like the insurance company, we are professionals too. Only our main job is to deal with the insurance companies for you and get you everything you are legally owed.

6. Okay, maybe you will take the hassle out of getting me what I am legally owed, but aren't you lawyers real expensive?

First visits to our office are absolutely free. In fact, we don't charge anything for fees if we do not collect money for you so you don't have to pay for our fees out of your pocket. Costs, if any, are additional. We collect our fee from the money we get for you from the insurance companies.

7. Well, but don't you mind up taking most of the money I should get?

Absolutely not. If your case is settled, our legal fee never exceeds one-third of the total settlement. Also, we understand the legal system and we know how to deal with the insurance companies involved. We can collect for everything you are legally owed including your lost wages, pain and suffering, loss of consortium, and short- or long-term disability. All these things can add up to many times more than just your medical bills. Even after our one third portion is accounted for, you will still end up better off financially in most cases than if you try to take on the insurance company all by yourself. In almost all cases, we can get more from the insurance company than you can get on your own.

8. Okay, but I don't want to be involved in any lawsuits or going to court.

Don't worry. We never file a lawsuit unless you request it. Also, almost all of all the cases we take are settled (more than 95%) without even beginning a lawsuit.

9. Well, it sounds good and you sound nice, but what if I'm still not sure?

Give me a call at _________ and let's talk together for a little bit. After we talk on the phone, I think you will know for sure if you would like to meet me in person to discuss your case at no cost to you. Thanks. I'll be expecting your call.

 

Mstr-PI.007                                                                                                                4/11/89

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Dear C:

We have learned that you have recently been involved in an auto accident and may have been injured. Based upon our initial review of your accident, we believe that we may be of assistance to you. At a minimum, a free consultation with us (by phone and/or in person) may answer some of your questions and help you determine whether you may benefit from legal representation, normally on a contingency fee basis. If you have already signed a fee agreement with another attorney for this accident, you may disregard this message.

It has been our experience that accident victims recover more for their injuries with the help of experienced accident attorneys than on their own. We are experienced in handling a wide range of accident cases, mostly for individuals such as yourself. We also have prior experience in defending accident cases for insurance companies.

If you retain us as your attorneys, we can investigate and document your accident case so that your rights to an adequate recovery are not prejudiced. We can discuss with you your past and future medical care and assist you in obtaining additional medical care if needed and desired. We can help locate and explain to you various sources of insurance coverage, some of which you may not be aware. We can negotiate and/or litigate (through trial if necessary) your claim to enable you to obtain a fair recovery for all your injuries and life disruption, not just your expenses.

We will be happy to discuss your case or answer any questions you may have, without obligation, either by phone (call __________) or in person. Also, for your benefit, we have enclosed a copy of your accident report and a document entitled Helpful Suggestions Following An Accident. We are prepared to make house or hospital calls when necessary and look forward to hearing from you.

Sincerely,

 

APPENDIX B

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Helpful Suggestions Following An Accident

1. Contact our office if you have any questions following your accident. One of our Attorneys will speak with you (or return your call as soon as possible if not immediately available). They may be able to offer you advice regarding different aspects of your case, including settling your auto body damage claim. There is no consultation fee.

2. Obtain immediate medical care if you are injured. If you wait too long following an accident before obtaining the appropriate care, you may prejudice your health and your case. If you do not have a doctor, we may be able to refer you to one so that you are able to obtain the medical care you need. Even if you do not have insurance, we way be able to help you get medical care from doctors who are willing to wait until your case is settled to receive their fee.

3. Return to each of your doctors as often as necessary. Tell them about all your complaints. Do not minimize your ailments since your doctors need to know what is wrong il order to treat you and so all your injuries will be medically documented. Keep all of your appointments or give your doctor reasonable notice if you must cancel. You should cooperate with him/her because you may need his/her cooperation in providing written reports or testimony later on.

4. Keep a daily or weekly record of your difficulties and progress. This can be very helpful when, a year or two later, you may be required to recall your pain, suffering and other problems.

5. Keep an accurate record of all time lost from work due to your injuries or medical care visits. Also keep track of lost bonuses, overtime, and any lost job opportunities.

6. Obtain and keep copies of all medical, hospital and drug bills.

7. Keep track of all expenses incurred as a result of your accident. This includes such things as transportation costs and household help. Expenses such as these should be paid by check, or you should get receipts.

8. Obtain the correct names, addresses and telephone numbers of any and all witnesses.

 

 

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9. Have someone take pictures of your injuries and of your damaged vehicle. These photographs may be important during settlement negotiations and/or trial.

****************************************************************************************************

DON'T

1. Plead guilty to any traffic offenses. If you are arrested or charged in connection with this accident, call our office or your family lawyer immediately.

2. Talk to anyone about your accident except your lawyer and people working for him or your own insurance company representatives. However, you may want to limit your discussions with your own insurance company representatives to automobile damage issues as they may become your adversaries on issues of uninsured or underinsured motorist coverage, medical payments coverage etc. We suggest you call our office if you have any questions and that you provide no written or recorded statements to anyone except your attorney.

3. Talk to representatives of the other driver's insurance company until you have spoken with an attorney. Remember: no matter how nice the insurance adjuster appears, he/she is not on your side. It is his/her job to save the insurance company money, even if that means paying you less than what your case is worth.

****************************************************************************************************

PLEASE FEEL FREE TO CALL OR COME IN ANYTIME. OUR CONSULTATION IS FREE.


IF YOU DECIDE TO RETAIN US, WE WORK ON A CONTINGENCY FEE BASIS. IN OTHER WORDS, IF WE DO NOT OBTAIN A RECOVERY FOR YOU, THEN YOU WILL NOT OWE US ATTORNEY FEES, BUT ONLY FOR ANY OUT OF POCKET COSTS WE MAY HAVE EXPENDED. EVEN WHEN WE OBTAIN A RECOVERY FOR YOU, WE RECEIVE OUR FEE AND COSTS FROM THE SETTLEMENT PROCEEDS.

WE ARE PROFESSIONALS WHO DEAL ALMOST DAILY WITH INSURANCE COMPANY AGENTS, ADJUSTERS AND ATTORNEYS. AS YOUR ATTORNEYS, WE CAN HELP YOU RECOVER FOR YOUR LOST WAGES, IMPAIRMENT OF EARNING CAPACITY, COSTS OF PAST AND FUTURE MEDICAL CARE, LOSS OF CONSORTIUM, PAST AND FUTURE PAIN AND SUFFERING, SCARRING OR OTHER DAMAGES.

AGAIN, IF YOU HAVE ANY QUESTIONS, PLEASE CALL ______________. WE LOOK FORWARD TO HEARING FROM YOU.

ACCIDENT: 

AUTO, MOTORCYCLE, AIRCRAFT 

Guide To Your Legal Rights 

This guide contain many of the procedures

to follow if you have been the victim

of an automobile, motorcycle, boat or aircraft

accident.


KEEP THIS GUIDE

IN YOUR GLOVE BOX!

 

APPENDIX C

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While the information contained in this guide is believed accurate, it may not be

complete for your particular situation. Please consult an attorney for specific advice.

 

TABLE OF CONTENTS

1. What To Do After The Accident                                   Page 1

2. What Not To Do After The Accident                             Page 2

3. Immediately After The Accident                                  Page 3

4. Your Legal Rights                                                       Page 5

5. Car Repairs                                                                Page 6

6. Rental Car                                                                  Page 7

7. MedicaI Care                                                               Page 8

8. Lost Wages                                                                 Page 11

9. Pain and Suffering                                                       Page 12

10. Insurance Coverage                                                   Page 13

11. Accident Descriptions                                                  Page 14

12. Accident Questionnaire                                               Page 16

13. See a lawyer before signing any releases from insurance companies. If you do not have a lawyer, call Attorney __________ for a free Consultation if you have any questions about your rights or about liabilities arising from the accident. See Page 22.

 

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1. AFTER THE ACCIDENT, TO HELP PRESERVE YOUR BASIC LEGAL RIGHTS, DO THE FOLLOWING  

1. Try to help the injured and gather information.

2. Try to have pictures taken of the accident, or at least of damage done to your car and injury to your body.

3. Make a diagram of the accident, as well as to take down all pertinent information from drivers, passengers and witnesses.

4. Call on ambulance or any other emergency vehicles, if necessary.

5. Call the police to have them come out to the accident scene to make a report. Make sure you explain to them any injuries which may have ensued from the accident.

6. Cooperate with Highway Patrol or police officers who are at the scene of the accident.

7. Go to a doctor to check out whether you sustained any injuries.

8. Call the insurance company to report the accident.

9. Have your automobile appraised at the best repair facility that can restore your car to its original condition.

10. Keep a journal of time missed from work, lost wages and projected future loss of earning capacity due to injury or disability from the accident.

11. Keep daily logs of your medical condition: feelings of pain and headaches, mental stress, inability to interact with loved ones, etc. Note your visits with doctors, including any out-of-pocket expenses, mileage to and from his office and the amount of time spent in therapy.

 

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2.         AFTER THE ACCIDENT

 

DO NOT

1. Make any voluntary statements.

2. Drink and drive. There are harsh penalties for drunken driving. If you are involved in an accident where the other driver was under the influence of drugs or alcohol, make sure the accident report reflects this fact.

 

DO NOT

3. Fail to stop and trade identifications if you are involved in an accident. Penalties for “hit-and-run" driving are quite severe in Arizona.

4. Refuse to sign a traffic ticket. It is a promise to appear in court to explain your side of the story.

5. Allow witnesses or passengers to leave the scene of the accident until they have been properly identified and a statement has been taken from them, however, do not use physical force to restrain them.

6. Move the involved automobiles until a record of how the accident occurred has been made.

 

DO NOT

7. Confuse “negligence” in an accident with "an intentional act" by the other driver. Insurance companies are not liable for and will not reimburse drivers for deliberate intentional acts. The do pay on claims which are caused by negligence.

8. Ignore signs of pain in the neck or lower back.

9. Admit fault, discuss opinions or offer information about the accident to the other driver, to his attorney or to any insurance company. A personal injury lawyer can best advise you in this area.

10. Pay money out-of-pocket for expenses, related to the accident. Try to obtain services on a "lien basis," or to have the insurance company pay for these expenses in a timely manner.

 

DO NOT

11. Settle your insurance claim before you are completely healed or until you are sure that the settlement takes into account your future medical needs, pain and suffering and all components of loss relating to accident.

 

DO NOT

12. Allow insurance companies to treat your clairn unfairly or expeditiously. Be vigilant concerning acts of bad faith on their part.

 

DO NOT

13. Make any premature statements or sign any releases with the insurance company until you consult first with an attorney. Attorney __________ is qualified to assist you with questions, advice and counsel on such matters.

14. Withhold any information from your attorney. All communications with him are privileged and confidential.

 

DO NOT

15. Settle bodily injury or property damage claims without first consulting with on attorney. You may call for a free consultation with Attorney ___________.

 

3.         IMMEDIATELY AFTER THE ACCIDENT

You must stop if you are involved in an accident. In Arizona the penalties for “hit-and-run" driving are severe. Call the police or Highway Patrol to have them come out to the accident scene to take a report. If the accident is on private property, the police will not come out and make a police report unless:

1. There was a hit and run driver; or

2. One of the parties requires hospitalization resulting from the accident; or

3. One of the parties was suspected of driving under the influence; or

4. The property damage was over $5,000.

Also, see Section 11 on Accident Descriptions on page 14.

 

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Make a diagram of the accident, showing the positions of the cars before, during and after impact. Measure skid marks, note the positions of traffic lights and street signs, estimate the respective driving speeds and record details about the weather and road conditions. lf possible, have photographs taken of the accident scene and of any damage or injury.

Do not admit to any fault for the accident. Do not volunteer information on the accident. Do not sign any pieces of paper nor agree to pay for damages. You should, however, cooperate with police officers investigation the case. You must sign traffic tickets - but this in itself is not an admission of guilt or wrongdoing. Advise the officer of basic facts, without adding personal comments or interpretation. Keep calm.

As soon after the accident as possible, if there is any possibility you have been injured, it would be a good idea to be checked out by a doctor. Even if there are no initial signs of pain, there might have been damage done to the neck or spinal cord. There are fine multi-disciplinary clinics which specialize in the treatment of traumatic injuries – those which are specific to automobile accidents.

You will need to contact your insurance company. You may want to talk to a lawyer at this time to clarify your rights and discuss questions of liability for the accident.

Do not sign any releases until you are sure that the insurance company will cover the cost of all repairs to your satisfaction; and that they will give a check to the repair shop in a timely manner so that you can get your car back as soon as possible, with no out-of-pocket expense to you. It is in your best interest to have a lawyer review any releases before you sign them.

Attorney ____________ has experience in working and negotiating with insurance companies and their adjusters if necessary I will research through many different periodicals (Kelly Blue Book, Auto Trader, want ads, etc.) to find a best comparable price for your car.

 

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4.         AFTER THE ACCIDENT, SOME OF YOUR LEGAL RIGHTS

Victims of an accident have certain rights by law. Basically, you have a right to be put back in the same condition that you were in before the accident occurred. This includes your physical, mental and economic well-being, as well as the restoration of your automobile and any other personal properly damaged by the carelessness or negligence of others. Your basic legal rights are as follows:

1. To the reasonable and equitable market replacement value of your automobile, it is totaled.

2. To have your automobile repaired to its original pre-accident condition, if it is not

totaled.

3. To the use of a rental car while your automobile is being repaired, at no cost to you.

4. To have any other personal property which had been damaged or destroyed by the accident, to be repaired or replaced.

5. To the very best medical care available, with no or little out-of-pocket expense to you.

6. To recover any lost wages or loss of earning capacity which might have resulted from the automobile accident.

7. To be reimbursed for transportation costs to and from the medical facility; and to be compensated for the time spent traveling to therapy, as well as for the time spent within the scope of therapy.

8. To an equitable settlement for permanent disabilities which might have resulted from the automobile accident.

9. To be compensated for any undue physical or mental stress or any inconvenience which the accident might have caused.

  

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5. YOUR CAR REPAIRS

Adequate insurance coverage and competent legal representation can help turn a seemingly devastating accident into a minor inconvenience.

If your car has been disabled, it may be towed away to clear city streets. It may even be taken to a storage facility and held there until you designate where it should be for repairs. The involved insurance companies are responsible for the payment of towing and storage fees.

You may chose whatever repair facility you wish to fix your car. You are not required to get more than one estimate, nor are you required to use any particular facility designated by the insurance company. It is your decision where and how it will be repaired to your satisfaction.

Low estimates may overlook details such as proper alignment, headlight adjustment, correct matching of paint colors, etc.

After choosing your mechanic and/or body shop, and agreeing with them as to the type of work to be done, you can then present the insurance company with the estimate. If they can negotiate a lower price with your repair facility, that is their privilege.  But you do not have to compromise quality, neither do you have to be involved in the haggling between the insurance company and the mechanic. 

If the cost of the repairs is greater than the value of the car, the insurance company will offer to reimburse you only for what they consider to be the “fair market value” of the car. This figure will quite often be much lower than the purchase price of the vehicle; because the insurance company: 1) will deduct for depreciation of the automobile, 2) will not reimburse for finance charges, and 3) may use a schedule which does not reflect a current fair and equitable value for the car. In this instance it takes an extremely skillful negotiator to convince the insurance adjusters of the true worth of the car to you.

6. WHAT ABOUT A RENTAL CAR?  

While your car is out of commission, you have the right to the use of a rental car. All expenses relating to the rental of this automobile will be paid for by whichever insurance company is liable for this coverage. You should contact your own insurance company to see whether or not your automobile insurance policy will transfer over to the use of the rental car.

You are entitled to the use of an automobile of comparable worth and value, or equivalent make and model, to your own car, for the reasonable amount of time that it takes to either repair or replace your car.

Some insurance companies may try to convince you that they are only responsible for: 1) a car which rents for less money, 2) a car which is less than comparable to the one that you had been driving (and paying them to insure), and/or 3) the rental of a car for a shorter period of time than what you are really entitled to.  Sometimes it takes a great deal of time and effort and evidence to persuade the insurance adjusters of your rightful claim.

Attorney ____________ is especially sensitive to his clients’ needs in this particular area. They want to make sure that the transition between accident and recovery is not unduly hampered by lack of mobility, or by the added stress of having to worry about haggling over payment of an interim means of transportation.

___________ works with several different car rental firms who will either bill the insurance company directly, or will accept payment at the end of the case when a final settlement has been obtained for the client. There is no attorney fee charged for assistance in obtaining a rental car by clients of ____________ .

If you have any questions regarding your right to the use of a rental car, please call _____________ at _____________ for a free initial consultation.

 

7. WHAT MEDICAL CARE AM I ENTITLED TO?

If you are involved in on automobile accident you owe it to yourself to fully avail yourself of all the protection that your insurance policy provides. You should be thoroughly checked out by appropriate medical professionals.

 

Severe Physical and Mental Injuries

Serious injuries such as broken bones, being knocked unconscious, severe  gashes and lacerations should be taken care of immediately, above all other considerations. Demand that an ambulance rush you to the nearest emergency room. Once your condition has stabilized, selecting the best doctors to treat you, getting your car fixed, handling the various details of the accident are the next steps.

Complex issues like permanent disability, prolonged loss of earning capacity, future medical complications, structured settlements, post-traumatic stress disorder, etc. are better negotiated by a lawyer.

 

Head, Neck and Back Injuries

The most common injuries sustained in the majority of accidents are those to the head, neck and back. The impact of being rear-ended by another car – even at relatively low velocities - may be sufficient to strain, and injure these parts of the body which are connected to a very delicate spinal cord.

These injuries are very real - and have been known to cause years of suffering when improperly diagnosed, mistreated or ignored. Damage occurs to soft tissues in the neck, mid-back and lower back; which could affect muscles, ligaments, nerves, blood vessels, vertebrae and discs. In most cases the only evidence of the injury is the victim's complaint.

Symptoms such as headaches, dizziness, nausea, stiffness, numbness, impaired vision; as well as pains in the neck, arms and lower back may show up immediately, or even days or weeks later. Even more acute damage may result in a neck sprain, torn ligaments, pinched nerves, injury to the esophagus or jaw, concussion and/or stretched vertebrae.

That is why it is so important: 1) not to give a premature opinion or statement about your condition of the time of the accident, 2) to be checked out by doctors who specialize in soft tissue injuries, and 3) to hold off settling with any insurance company until all symptoms have surfaced, all injuries have been treated and all damage has been repaired.

Attorney ________________ is able to arrange most medical treatment for his clients, with no out-of-pocket expense for them. ___________ seeks reimbursement for these medical expenses from most applicable insurance policies and from all liable insurance companies.

 

Treatment

Medical specialists in diagnosing and treating victims of accidents, usually are more experienced and better equipped to handle such traumas than are general practitioners or family doctors.

First, patients are interviewed, giving their past medical history. Then, usually x-rays are taken to see if there has been any damage or fracture to the spine and neck. Depending on the findings and the nature of complaints about painful areas, there are a number of specialists who might be consulted, either for further diagnosis or treatment.

A radiologist con interpret the x-rays of best decide which other specialists the patient should be seeing. He can also detect fractures, sprains, slipped discs, etc.

An orthopedist is a doctor who specializes in diagnosing, treating and healing broken bones, hair line fractures, chipped vertebrae, etc. He is aIso concerned with injury to joints, muscles and ligaments as they relate to motion of the skeleton.

A neurologist is on expert who specializes in diseases and injuries to the nervous system. A bump of the head may cause an injury as serious as a brain concussion. A sprain could result in pinched nerves which leave the patient with symptoms of numbness or tingling in the joints or extremities. Even straining the back might compress nerves or sensitive vertebrae.

A psychologist con help accident victims recover from feelings of fear, anxiety or depression. Some patients feel alienated from friends or loved ones, which can result in toss of consortium or sexual impotency. Others, who were in especially traumatic accidents; suffer symptoms of nausea, sleepless nights, nervousness or breaking out in sweat when stressed or reminded of the intensity of the accident. This condition is called post-traumatic stress disorder, and it has been known to linger for quite some time. These days it is not enough for a doctor to be only a good healer. He must also be skilled enough to write a credible, factual medical report capable of justifying his program of diagnosis, treatment and healing – to be submitted to the insurance companies for payment.

 

8. LOSS OF WAGES AND TIME

As a consequence of the accident, you may be forced to miss work or otherwise have your livelihood interrupted. Your earning capacity may also be impaired for an indefinite period of time. Whether this is caused by lack of transportation, personal injuries, disability, mental stress, etc. – you do have a right to be compensated for this loss of income. If you become disabled as a result of the accident, you may also have a right to collect from your disability insurance.

Whatever time or costs you must spend in the process of making yourself whole and well again (travel time, transportation costs, affiliated repair expenditures, time spent in the doctor's or in therapy, etc.) are compensable.

The insurance company may require documentation (to the point of harassment) to have you substantiate your claims of lost wages, time spent in therapy and expenditures related to the maintenance of your wellbeing.

If you have any questions concerning your rights in this area, please contact Attorney _____________ for a free, no-obligation consultation.

 

9. PAIN AND SUFFERING

A proper and equitable settlement for damages and injuries sustained in an automobile accident includes many factors.

Some damages the insurance company is liable for which you have suffered from your accident are as follows:

  1. All property damage - including repair to your automobile.
  2. Use of a rental car.
  3. Recovery of lost wages
  4. Transportation costs to the doctor.
  5. Time spent in therapy and time spent traveling to the doctor or clinic.
  6. All medical bills.
  7. Any physical or mental disabilities.
  8. Loss of consortium or sexual impotency.
  9. Emotional distress.
  10. Pain and suffering from the trauma, intrusion, inconvenience and anguish of the accident.

Depending on individual circumstances and good documentation, reimbursement for pain and suffering can make the difference between a poor settlement and an equitable settlement.

Attorney __________ will have pictures taken of your injuries and work with you in keeping a daily log of your condition. If you need advice or consultation on your claim for pain and suffering, please call _______________ at __________________  .

 

10. YOUR AUTOMOBILE INSURANCE COVERAGE

Buying the right automobile insurance policy can be a jungle: finding the best value, obtaining the best coverage and avoiding loopholes which seem to nullify having any protection at all. Auto insurance is mandatory in Arizona, a seemingly unfair policy is better than having no policy of any kind. A lawyer can help an accident victim maximize the benefits and advantages of even the worst insurance policy.

Fortunately for consumers, Arizona has strong laws to protect them against bad faith I from insurance companies.

 

Insurance Coverages

There are several different types of automobile insurance for you to consider purchasing. The amount of coverage in each category that you might buy is at a minimum relative to: 1) How nice your car is, 2) the net worth of your personal assets, if you are responsible for an accident, 3) how much of your budget you want to allocate for insurance, and 4) how secure you need to feel.

 

BODILY INJURY AND PROPERTY DAMAGE LIABILITY pays damages for which you are legally liable arising from injuries or death or from damage to property of others. Pays legal costs if you are sued. This coverage is mandatory.

COLLISION pays for damage to your car caused by impact with another automobile or object.

UNINSURED MOTORIST AND UNDERINSURED MOTORIST. If the driver of the other vehicle involved in an accident is legally liable; but either has no insurance, is under insured, or is unknown - this protection will pay you and occupants of your car for bodily injury. You can also purchase the protection for property damage to your car.

COMPREHENSIVE covers loss or damage to your car resulting from perils such as fire, theft, vandalism, glass breakage, explosion, etc.

MEDICAL PAYMENTS pays for reasonable medical expenses incurred in a specific amount of time from the accident. Protects everyone in your automobile no matter who is liable for the accident. Also covers medical expense if you are struck by any automobile, or if you are in an accident in someone else’s automobile.

 

11. ACCIDENT DESCRIPTIONS

On the following diagram, sketch the scene of your accident. Draw your car as a box and indicate with an X the points of collision.

1)    _______________Your car and its direction.

2)    _______________Other driver’s car and direction of travel.

3)    (P) (W) (w) Pedestrians, witnesses, witnesses' cars.

4) Show distance, location and direction of landmarks, traffic signals, streets, intersection, etc.

5) Indicate north by drawing an arrow.

Try to make sure that all drivers, passengers, pedestrians and witnesses remain at the scene of the accident. If they insist on leaving, write down their names, addresses, phone numbers, license plate numbers, etc. - and an account of what they saw. Take down the name of the police officer and his badge number. Ask him when and where you I may pick up a copy of the accident report. This is especially important to help you preserve your rights if you are making an uninsured motorist claim against the insurance company.

Both drivers must identify themselves to each other. Copy down information contained on the other driver's license, vehicle registration and insurance card. Likewise, identify all passengers and witnesses. You will need their names, addresses and phone numbers.

 

12. ACCIDENT QUESTIONNAIRE

DATE OF THE ACCIDENT: ________________

TIME: _________________________________

YOUR NAME: __________________________

ADDRESS: _____________________________

CITY/STATE/ZIP: _________________________________

MAIL TO: _______________________________________

HOME TELEPHONE: ______________________________

WORK TELEPHONE: _____________________________

SOCIAL SECURITY NO: ___________________________

BIRTHDATE: ____________________________________

SPOUSE'S NAME: ________________________________

BIRTHDATE: ____________________________________

CHILDRENS NAMES: ______________________________

BIRTHDATES: ____________________________________

PASSENGERS IN YOUR CAR: ______________________

 

YOUR EMPLOYER: ________________________________

POSITION HELD: __________________________________

LENGTH OF EMPLOYMENT: ________________________

PROPERTY DAMAGE AMOUNT: ______________________

REFERRED BY: ___________________________________

EMERGENCY ROOM CARE: _________________________

_________________________________________________

_________________________________________________

_________________________________________________

_________________________________________________

_________________________________________________

PROVIDERS SEEN TO DATE:

  1. _________________________________________________
  2. _________________________________________________
  3. _________________________________________________
  4. _________________________________________________

 

MEDICAL EXPENSES TO DATE: _________________________________________________

 

OUT-OF-POCKET EXPENSES TO DATE:

_________________________________________________

 

WITNESSES

 

NAME: __________________________________________

APPROXIMATE AGE: ______________________________

ADDRESS: ______________________________________

CITY: ___________________________________________

ZIP: ____________________________________________

PHONE (WORK): _________________________________

PHONE (HOME): __________________________________

WHERE/HOW WITNESSED: _________________________

__________________________________________

__________________________________________

__________________________________________

 

STATEMENT OR REMARKS: _________________

__________________________________________

__________________________________________

__________________________________________

 

YOUR CAR INSURANCE: _____________________

__________________________________________

TELEPHONE NUMBER: ______________________

POLICY NUMBER: __________________________

CLIENT’S HEALTH INSURANCE: _______________

__________________________________________

POLICY NUMBER: ___________________________

EXCESS OR UMBRELLA POLICIES:

__________________________________________

 

TELEPHONE NUMBER: ______________________

OTHER DRIVERS NAME: _____________________

CAPACITY: ________________________________

OTHER DRIVERS ADDRESS: _________________

__________________________________________

 

CITY/STATE/ZIP: ___________________________

TELEPHONE NUMBER: ______________________

SOCIAL SECURITY NUMBER: _________________

BIRTHDATE: _______________________________

DRIVER'S LICENSE NUMBER: _________________

STATE: ____________________________________

OTHER DRIVER'S NAME: _____________________

CAPACITY: _________________________________

OTHER DRIVERS ADDRESS: __________________

___________________________________________

 

CITY/STATE/ZIP: _____________________________

TELEPHONE NUMBER: _______________________

SOCIAL SECURITY NUMBER: __________________

BIRTHDATE: ________________________________

DRIVER'S LICENSE NUMBER: __________________

STATE: _____________________________________

OTHER DRIVERS NO. 1 CAR INSURANCE:

__________________________________________

 

OTHER DRIVERS NO. 2 CAR INSURANCE:

__________________________________________

OWNER OF DEFENDANT CAR

INSURANCE: _______________________________

 

PASSENGERS IN THE OTHER DRIVERS CAR

 

NAME: ____________________________________

APPROXIMATE AGE: ________________________

ADDRESS: _________________________________

CITY: _____________________________________

ZIP: _______________________________________

PHONE (HOME): ____________________________

PHONE (WORK): ____________________________

The Law Offices Of

(omitted)

Attorney-At-Law

For FREE Consultation

(On Accident Cases)

Call (602) (omitted)

PERSONAL

INJURY

 

o AUTO ACCIDENTS

o Pedestrian

o Motorcycles

o Aviation Accidents

o Wrongful Death

o Dog Bite

o Slip & Fall

o Home Appointments Available

o Se Habla Espanol

 

Law Degrees:

1. Bachelors in Law, Western State University

2. Juris Doctorate in Law, Western State University, Honors in Insurance Litigation

3. LL.M. LegaI Master’s Degree in Urban Affairs, Washington University

 

Non-Legal Credentials

Licensed Insurance Broker

Licensed Commercial Pilot

 

SUPREME COURT

STATE OF ARIZONA

July 27, 1989

 

RE:     RULE 42, ER 7.2 and ER 7.3, RULES OF THE SUPREME COURT

Supreme Court No. R-89-0013

 

GREETINGS:

Enclosed is a copy of an amendment to Rule 42, ER 7.2 and ER 7.3, Rules of the Supreme Court, adopted by this court on an emergency basis, pursuant to Rule 28 (G), Rules of the Supreme Court, effective August 1, 1989.

This is being sent to you for comment, pursuant to Rule 28 (C), Rules of the Supreme Court. Comments should be sent to the Clerk of the Court on or before October 1, 1989.

NOEL K. DESSAINT, Clerk

TO:

Bruce Hamilton, Executive Director, State Bar of Arizona

Daniel J. McAuliffe, Chair, Civil Practice & Procedures Committee

Allen R. Heinze, Executive Director, Arizona Prosecuting Attorneys' Advisory Council

Clark L. Derrick, President, Arizona Attorneys for Criminal Justice

Hon. Rose Mofford, Governor, State of Arizona

Hon. Robert K. Corbin, Attorney General, State of Arizona

Hon. Jane Dee Hull, Speaker Arizona House of Representatives

Hon. Robert B. Usdane, President, Arizona State Senate

Mr. Don Jansin, Director, Arizona Legislative Counsel

Board of Governors, State Bar of Arizona

Members, Council on Judicial Administration

Glen D. Clark, Clerk, Court of Appeals, Division I

Joyce A. Goldsmith, Clerk, Court of Appeals, Division II

Presiding Superior Court Judges

Superior Court Clerk's

President's, State and County Bar Associations

County, Attorneys

Patricia Gannon, Editor, State Bar Attorney

Howard Armstrong, Editor, Maricopa Lawyer

Neal Eckel, Editor, The Writ

  

APPENDIX D

 

IN THE SUPREME COURT OF THE STATE OF ARIZONA

ORDER AMENDING RULE 42,

ER 7.2 AND ER 7.3,

RULES OF THE SUPREME COURT

 

IT IS ORDERED amending Rule 42, Rules of the Supreme Court, ER 7.2 and ER 7.3, as set forth in the attachment hereto, effective August 1, 1989:

Dated in the City of Phoenix, Arizona at the State Capitol, this 27th day of July, 1989.

(Signatures rendered by the following:)

FRANK X. GORDON, JR., CHIEF JUSTICE

STANLEY G FELDMAN, VICE CHIEF JUSTICE

JAMES D CAMERON, JUSTICE

JAMES MOELLER, JUSTICE

ROBERT J CORCORAN, JUSTICE

 

ER 7.2. Advertising

(a) Subject to the requirements of ER 7.1 and ER 7.3, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor, radio or television, or through written communication.

(b) (No change)

(c) (No change)

(d) (No change)

(e) (No change)

(f) A lawyer shall not send, or knowingly permit to be sent, on behalf of himself, his firm, his partner, an associate, or any other lawyer affiliated with him or his firm, a written communication to a prospective client for the purpose of obtaining professional employment if:

(1) The written communication concerns a specific matter and the lawyer knows or reasonably should know that the person to whom the communication is directed is represented by a lawyer in the matter;

(2) It has been made known to the lawyer that the person does not want to receive such communications from the lawyer;

(3) The communication includes coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence:

The communication is otherwise improper under ER 7.1.

(g) (No change)

(h) (No change)

 

E.R. 7.3, RULE 42, RULES OF THE SUPREME COURT

ER 7.3. Direct Contact with Prospective Clients

A lawyer may not solicit professional employment from a prospective client with when the lawyer has no family or prior professional relationship by mail, in person, or otherwise when a motive for the lawyers doing so is the lawyer’s pecuniary gain. The term “solicit” includes contact in person by telephone or telegraph, by letter or other writing, or by other communication, directed to a specific recipient, but does not include letters addressed or advertising circulars distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful.

(a) A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship in person or by telephone, when a motive for the lawyer's doing so is the lawyer's pecuniary gain.

(b) Subject to the requirements of ER 7.1 and ER 7.2, and paragraph (c) herein, a lawyer may initiate written communication, not involving personal or telephone contact, with persons known to need legal services of the kind provided by the lawyer in a particular matter, for the purpose of obtaining professional employment. Such written communication shall be clearly marked on the envelope and on the first page of the communication contained in the envelope, as follows:

ADVERTISING MATERIAL:

THIS COMMERCIAL SOLICITATION HAS NOT BEEN

APPROVED BY THE STATE BAR OF ARIZONA

Said notification shall be printed in red ink, in all capital letters, in type size at least double that used in the body of the communication. If the solicitation advertises representation on a contingent or "no recovery, no fee” basis, it shall also state that the client may be liable for costs and expenses.

(c) At the time of dissemination of such written communication, a copy shall be forwarded to the Clerk of the Arizona Supreme Court and the State Bar of Arizona at its Phoenix office. If a written communication identical in content is sent to two or more prospective clients, the lawyer may comply with this requirement by forwarding a single copy together with a list of the names and addresses of persons to whom the written communication was sent.

 

BAR'S COMMENT

There is a potential for abuse inherent in direct solicitation by a lawyer of prospective clients known to need legal services. It subjects the lay person to the private importuning of a trained advocate, in a direct interpersonal encounter. A prospective client often feels overwhelmed by the situation giving rise to the need for legal services, and may have an impaired capacity for reason, judgement and protective self-interest. Furthermore, the lawyer seeking the retainer is faced with a conflict stemming from the lawyer's own interest, which may color the advice and representation offered the vulnerable prospect.

This situation is therefore fraught with the possibility of undue influence, intimidation, and over-reaching. This potential for abuse inherent in direct solicitation of prospective clients justifies its regulation prohibition, particularly since lawyer advertising permitted under ER 7.2 offers an alternative means of communicating necessary information to those who may be in need of legal services.

Advertising makes it possible for a prospective client to be informed about the need for legal services, and about the qualifications of available lawyers and law firms, without subjecting the prospective client to direct personal persuasion that may overwhelm the client's judgment.

The use of general advertising to transmit information from lawyer to prospective client, rather than direct private contact, will help to assure that the information flows cleanly as well as freely. Advertising is out in public view, thus subject to scrutiny by those who know the lawyer. This informal review is itself likely to help guard against statements and claims that might constitute false or misleading communication, in violation of ER 7.1. Direct private communications from a lawyer to a prospective client are not subject to such third person scrutiny and consequently are much more likely to approach (and occasionally cross) the dividing line between accurate representations and those that are false and misleading.

These dangers attend direct solicitation whether in-person or by mail. Direct mail solicitation cannot be effectively regulated by means less drastic than outright prohibition. One proposed safeguard is to require that the designation “advertising” be stamped on any envelope containing a solicitation letter. This would do nothing to ensure the accuracy and reliability of the contents. Another suggestion is that solicitation letters be filed with a state regulatory agency. This would be ineffective as a practical matter. State lawyer discipline agencies struggle for resources to investigate specific complaints, much less for those necessary to screen lawyers’ mail solicitation material. Even if they could examine such materials, agency staff members are unlikely to know anything about the lawyer or about the prospective client’s underlying problem. Without such knowledge they cannot determine whether the lawyer’s representations are misleading. In any event, such review would be after the fact, potentially too late to avert the undesirable consequences of disseminating false and misleading material.

General mailings not speaking to a specific matter do not pose the same danger of abuse as targeted mailings, and therefore are not prohibited by this rule subject to the same restrictions under this rule. The representations made in such mailings are necessarily general rather than tailored, less importuning than informative. They are addressed to recipients unlikely to be especially vulnerable at the time, hence who are likely to be more skeptical about unsubstantiated claims. General mailings not addressed to recipients involved in a specific legal matter of incident, therefore, more closely resemble permissible advertising rather than prohibited solicitation.

Similarly, this rule would not prohibit a lawyer from contacting representatives of organizations or groups that may be interested in establishing a group or prepaid legal plan for its members, insureds, beneficiaries or other third parties for the purpose of informing such entities of the availability of and details concerning the plan or arrangement which he or his firm is willing to offer. This form of communication is not directed to a specific prospective client known to need legal services related to a particular matter. Rather, it is usually addressed to an individual acting in a fiduciary capacity seeking a supplier of legal services for others who may, if they choose, become prospective clients of the lawyer. Under these circumstances, the activity which the lawyer undertakes in communicating with such representatives and the type of information transmitted to the individual are functionally similar to and serve the same purpose as advertising permitted under ER 7.12.

 

COURT'S COMMENT TO 1989 AMENDMENT

The State Bar recently submitted to this court’s proposal to change ER 7.2 and 7.3. The proposed change would delete from the existing rules those provisions prohibiting lawyers from making direct-mail, targeted solicitation of prospective clients and would expressly permit such advertising, providing a copy of the written material was simultaneously filed with the State Bar.

The court is quite aware that the Board of Governors submitted the proposed amendments only because in Shapiro v. Kentucky Bar Association the United States Supreme Court held that prohibitions against such solicitation violated the first amendment guarantees of freedom of speech. The State Bar is required, of course, to change our rules so they conform to the Court's interpretation of the Constitution. This court is also bound by the United States Supreme Court's interpretation, recognizes that the first amendment protects commercial speech and prohibits state from unduly restricting lawyers' advertising.

However, as we read Shapiro, it does not forbid such regulations as may be required to protect the public or preserve the standards and integrity of the profession. Nor does it prevent the Bar, as an agency of this court, from imposing reasonable requirements on the solicitation of prospective clients by direct mail, targeted communication.

Since Shapero, the members of this court have been made aware by personal observation, communication from lawyers and legislators, and otherwise that there is now a great deal of direct-mail solicitation, particularly in cases in which serious personal injuries or death are involved. Examples that have been sent to this court indicate that many Arizona residents are being approached by direct-mail, targeted solicitation at times of personal tragedy, economic emergency, or other hardships, and when they are therefore less able to make informed, intelligent choices regarding retaining counsel.

            Accordingly, this court has concluded that it must expand the information available to it with regard to the nature and quantity of direct-mail, targeted approaches being made in this state. It also believes that it is necessary for the protection of the public that it require all such direct-mail, targeted solicitations to clearly indicate that the material being disseminated is advertising material containing a commercial message and that the message has not been approved by the bar association.

Thus the court concluded that the proposal by the Board of Governors of the State Bar should be amended in the following manner:

1. A provision should be inserted in ER 7.3(c) requiring that at the time of dissemination of written direct-mail communications, a copy shall be forwarded to both the Clerk of the Arizona Supreme Court and the office of the State Bar of Arizona.

2. A provision should be added that such written communication be clearly marked on the envelope and on the first page of the communication contained_in the envelope, as follows:

ADVERTISING MATERIAL:

THIS COMMERCIAL SOLICITATION HAS NOT BEEN APPROVED

BY THE STATE BAR OF ARIZONA

Said notification shall be printed in red ink, in all capital letters, in type size at least double that used in the body of the communication.

As so amended, the rule changes proposed by the State Bar have been adopted and promulgated by this court. In addition, pursuant to Rule 28(G), Ariz.R.Sup.Ct.. 17A A.R.S., the court orders that the amendments adopted today are effective on an emergency basis on August 1, 1989.

Pursuant to Rule 28(G), the amended ER 7.2 and 7.3 will be circulated for public comment. The court intends to reconsider the matter once the comments are received from the public, the State Bar, and the special committee to be appointed by the Board of Governors to consider problems related to advertising by lawyers.

 

Code Comparison

DR 2-104 (A) provided with certain exceptions that “a lawyer who has given in-person unsolicited advice to a layperson that he should obtain counsel or take legal action shall not accept employment resulting from that advice .... “ The exceptions included DR 2-104(A) (1), which provided that “A lawyer may accept employment by a close friend, relative, former client (if the advice is germane to the former employment), or one whom the lawyer reasonably believes to be a client.” DR 2-104 (A) (2) through DR 2-104(A) (5) provided other exceptions relating, respectively, to employment resulting from public education programs, recommendation by a legal assistance organization, public speaking or writing and representing members of a class in class action litigation.

 

Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rules change, a different conclusion may be appropriate.

© State Bar of Arizona 1989 

 

[1] Copies of the rules which were amended effective August 1, 1989, are attached as Appendix D.

 




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