What Is Illegal Solicitation by Lawyers?

Choosing the right lawyer for an injury case is tough. There are a lot of choices out there (especially in Las Vegas). Lawyers are governed by many ethical rules. One of those rules controls when and how lawyers can solicit new clients.

But that doesn’t mean that some less scrupulous people don’t try to bend the rules. We believe that people in need of legal representation should understand how those rules get bent, because unethical lawyers who don’t follows the rules and laws of solicitation and referrals lawyers may be more likely to then do unethical things during the representation. Unfortunately, this is a real problem here in Las Vegas, and Claggett & Sykes has been working with other law firms to lead the charge to get the State Bar of Nevada to throw its weight behind ending this unethical practice – but we also want you to know the red flags to look out for in case you are subjected to illegal attorney solicitation.

In today’s blog, we’ll discuss the rules of procedure and conduct for attorneys here in Nevada regarding referrals and solicitation, and give a quick breakdown of other rules that may apply. As always, if you have questions, please don’t hesitate to contact our Las Vegas attorneys for a consultation.

Attorney advertising, referrals, and direct solicitation of injury clients in Nevada

There is a difference between attorney “advertising,” “referrals,” and “solicitation.” Let’s look at a very high-level breakdown of those terms.

Advertising

Under Rule 7.2 of the Nevada Rules of Professional Conduct, attorneys are allowed to advertise their services. This includes, but is not limited to:

• Having a website
• Putting up billboards
• Making ads for radio, TV, social media, and/or other online platforms (like YouTube)
• Joining legal directories
• Sending out mailers, circulars, or other written communications

The rules about how and when an attorney can advertise services are strict, and all law firms have to be very clear that these communications are advertisements.

Referrals

Attorneys can also develop referral networks. For example, Claggett & Sykes is often called upon by other firms across the country to take on cases. Sometimes, it’s because the other firm needs a partner because the case involves complex litigation which requires additional resources. Sometimes, the firm is based out-of-state, and needs local counsel it can trust. Attorneys are legally allowed to refer cases to one another, as long as they follow the rules. They can also work with professional referral services, like the one offered by the State Bar of Nevada. While non-lawyers may refer people to a lawyer, lawyers may not pay referral fees to non-lawyers. For example, if your friend was in a car crash and you referred them to a lawyer you used in the past, that is ok. But that lawyer could not pay you for sending that case to them.

Solicitation

That brings us to solicitation, which in this context means “contact in person, by telephone, telegraph or facsimile, by letter or other writing, or by other communication directed to a specific recipient” in order to gain employment. Under Rule 7.3, attorneys cannot do this. They can send mail to people who are injured, but they have to wait 30 days after the date of the injury to send the mail.

What is “capping”?

“Capping” is a form of direct solicitation – but not by the attorney. Instead, it is a non-legal person who directs an injured individual to a specific attorney for help. This can be the tow truck driver or ambulance company who shows up at the scene, or even a healthcare provider at a local hospital. Basically, an attorney cultivates a relationship with an affiliated person who:

1. Tries to get the injured person to hire a specific attorney, and/or
2. Ensure that a specific attorney knows about a crash or incident as soon as it happens.

Not only is this unethical, but it is also illegal in Nevada. NRS 7.045 – Unlawful solicitation of a legal business – states:

1. Except as otherwise provided in this section, it shall be unlawful for a person, in exchange for compensation, to solicit a tort victim to employ, hire or retain any attorney at law:
   1. At the scene of a traffic crash that may result in a civil action; or
   2. At a county or city jail or detention facility.
2. It is unlawful for a person to conspire with another person to commit an act which violates the provisions of subsection 1.

A “tort victim” includes anyone who is injured and/or has sustained property damage, as well as any of their immediate family members and/or guardians. In other words, if you are injured in a Las Vegas car accident, no one is legally allowed to solicit your business on behalf of a specific law firm. And if someone does hire an unethical attorney because of capping, that person can legally “void any contract, agreement or obligation that is made, obtained, procured or incurred in violation of this section.”

How is capping different from a referral?

People refer attorneys to one another every day, just like we refer mechanics, hair stylists, restaurants, and other services. The same is true for attorneys who refer attorneys or firms. If another firm wants to refer a client to us, that is perfectly legal: “a lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may pay the reasonable cost of advertising or written or recorded communication permitted by these Rules and may pay the usual charges of a lawyer referral service or other legal service organization.” Legally, attorneys may also split fees in cases where clients are referred to Law Firm B by Law Firm A.

In these cases, the fee schedules are known to everyone involved, and the clients know that their case is being referred to another firm (or that their case will be handled by attorneys from both firms). The benefits are transparent and open.

In a capping situation, the person who makes the referral usually receives something in return, the partnership isn’t out in the open, like it is between two law firms who are partnering on a case. In truth, most firms which engage in capping are doing so deceptively. You don’t know that the two truck driver is pushing you toward a specific firm because it benefits that tow truck driver. You don’t know that the nurse or ambulance driver gets a cut when they refer to you ABC Law Firm. Furthermore, those cappers probably can’t speak to the abilities, ethics, or resources of the firm they’re pushing on you.

An attorney who behaves unethically to get cases, we believe, is likely to behave unethically when representing those clients. That is why we wanted to talk about capping today: we think you deserve to know the facts about how advertising works, and we’ll hope you’ll join us in our fight to end this fraudulent practice in Nevada once and for all.

Claggett & Sykes is a personal injury law firm serving clients throughout Nevada. To learn more about our services, please call us in Las Vegas or Reno, or fill out our contact form.

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