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| In-Person Solicitation: A recent Minnesota
Supreme Court decision involving solicitation of patients by chiropractors
has generated confusion about the continuing viability of the legal
ethics prohibitions against in-person solicitation.1
In July the Court determined that chiropractor David Pietsch’s
use of “runners” or “cappers”2 to solicit auto accident victims for
chiropractic services did not constitute “unprofessional conduct”
as defined by the statutes governing the delivery of chiropractic
services in Minnesota. Pietsch v. Chiropractor Solicitation Pietsch, a The Chiropractic Board suspended Pietsch’s license for three years and assessed a $30,000 civil
penalty. In doing so, it determined
that Pietsch’s use of runners or cappers
to solicit patients constituted unprofessional conduct. Specifically the Board found: Obtaining patients by employing runners
to follow upon daily police accident reports preys on people when
they are most vulnerable. These
patients are not given an opportunity to carefully consider and choose
among health care options. They are, in fact, pressured into choosing the
runner’s employer for their health care. The Board also found that Pietsch’s targeting of the Hmong/Southeast
Asian communities was even more egregious because of the potential
language and cultural barriers experienced by these victims. Pietsch appealed the Board’s suspension to the
Court of Appeals. In affirming
the Board’s determination, the Court of Appeals panel found that there
was substantial evidence supporting the conclusion that Pietsch’s
use of runners to solicit patients was unethical, deceptive, and harmful
to the public as well as the chiropractic profession.
Pietsch v. Minnesota Bd. of Chiropractic Exam’rs, 662 N.W.2d 917, 924 (Minn. App. 2003).4 On review, the Supreme Court analyzed two
issues in reversing the decision and remanding the matter back to
the Chiropractic Board: (1)
was Pietsch’s solicitation of accident victims unprofessional
conduct per se?; and (2)
did the record support the Board’s conclusion that in-person solicitation
of accident victims negatively affected the professional-patient/client
relationship and was unethical, deceptive, and harmful to the public? As to the first issue the Court noted that
the statute defining unprofessional conduct does not specifically
make the use of runners or cappers to obtain business unprofessional
conduct per se.
This deficiency could have been overcome by evidence of an
industry standard clearly recognizing the use of runners to obtain
business as unprofessional. However,
the record contained no evidence of an industry standard. The Court also found the record devoid of
any support for the Board’s conclusion that Pietsch’s
solicitation was deceptive and harmful to the public. Specifically it noted the absence of any evidence
that the Xiongs had deceived or pressured
accident victims into using Pietsch’s services. Nor was there evidence that any of the accident
victims even objected to the solicitations. The paucity of evidence to support the unprofessional
conduct conclusions resulted in the Court’s reversal and remand of
Pietsch’s professional discipline case for
further proceedings. Lawyer Solicitation
Since the Pietsch decision, lawyers have inquired
about the applicability of the Court’s decision to the in-person solicitation
prohibitions governing lawyers and those associated with lawyers.
The short answer to these inquiries is that nothing has changed.
In-person as well as telephonic solicitation by lawyers and
their agents is not only unethical, but also illegal if the lawyer
pays the runner to solicit clients. A quick comparison of the legal regulations
governing solicitation reflects the significant distinctions between
the chiropractic and legal professions.
As noted in Pietsch,
professional conduct standards for chiropractors do not specifically
address solicitation of patients.
In contrast, Rule 7.3, Minnesota Rules of Professional Conduct,
expressly prohibits in-person or telephonic solicitation5 by a lawyer
unless a prior professional relationship exists with the prospective
client or the client is a family member.6
Assisting or inducing a nonlawyer (i.e.,
runner or capper) to violate the solicitation prohibition runs afoul
of Rule 8.4(a).7 Rule 7.2(c)
makes it unethical to give anything of value to a person for recommending
the lawyer.8 Applying the Court’s Pietsch analysis to lawyer conduct,
Rules 7.2(c), 7.3 and 8.4(a) define in-person and telephonic solicitation,
as well as paying for the solicitation of clients, as unprofessional conduct per se. These rules may also constitute evidence of
the industry standard the
Court found lacking for the chiropractic profession in Pietsch. Beyond legal ethics standards, The Pietsch chiropractic discipline
proceeding is consistent with a larger effort by government agencies
on both the state and federal level to curb or thwart healthcare fraud. One factor cited by the Chiropractic Board in
its discipline of Pietsch is that payments
to runners “can encourage patients to exaggerate or invent injuries.” Similar concerns undoubtedly caused the 2002
Legislature to enact Minn. Stat. §609.612, making it a felony to employ
a runner to procure patients for the purpose of fraudulently obtaining
benefits under a contract of motor vehicle insurance.
Within the past year, federal investigations
focusing upon use of runners and cappers resulted in the indictments
of local chiropractors for healthcare fraud. Key to the investigations was the testimony
of runners who sought leniency in their own prosecution in exchange
for testimony against chiropractors about incidents of healthcare
fraud. Unfortunately, the allegations made by these
runners were not limited solely to the chiropractic profession. Although no lawyer was implicated in healthcare
fraud, allegations of in-person solicitation and lawyer payments to
runners surfaced in the federal investigation.
Runners from more than one ethnic community claimed to have
been paid fees for soliciting legal clients or fees for nonexistent
interpretation services to conceal that they were in fact being compensated
for soliciting clients. Although lawyer discipline for in-person
solicitation and nonlawyer referral payments
is infrequent, complaints of this nature are on the rise. Most of these complaints, like the complaint
in Pietsch,
stem from alleged abuses within the various ethnic communities in
the Twin Cities. One ongoing
lawyer discipline investigation involves allegations of payments for
interpreter services as pretext for runner solicitation fees.
Other alleged abuses include a runner soliciting legal representation
at the home of an accident victim within 24 hours of the accident. In nearly all of the ethics complaints alleging
runner solicitation, the determinative issue is whether the lawyer
directed, assisted, promoted, induced or ratified the improper solicitation
by the runner. Other ethics
complaints have similarly turned upon the lawyer’s supervision, or
lack thereof, of nonlawyer employees or agents. As the healthcare fraud prosecutions have
shown, changes in the criminal laws have provided significant incentive
for runners and cappers to bite the hands that feed them. Lawyers wishing to avoid disciplinary exposure
to solicitation violations need only keep a few simple precepts in
mind. Written solicitation letters targeted to
prospective clients are permissible, in-person or telephonic contact
is not.9 Accepting referrals
from nonlawyers is allowable whereas compensating
nonlawyers for those referrals is not.
Payments for interpreter or other client-related services must
be bona fide. Invoices reflecting
the time expended by the interpreter in rend Retainer agreements signed by clients who
have never consulted or even talked with a firm’s lawyer invite disciplinary
inquiry. Lawyers who entrust
investigators and other nonlawyers with
retainer forms and the authority to sign up clients must appreciate
the peril of this practice if the client later contends he or she
was improperly solicited. Other measures include precautions that
may appear obvious to most lawyers.
Investigators, interpreters, or other nonlawyer
associates should not be allowed the autonomy to supplant or circumvent
the lawyer’s involvement at crucial stages of the representation. Such stages include, but are not limited to
retention of the lawyer’s services, advising the client about settlement
offers, and distributing settlement proceeds.
Language or cultural barriers between the lawyer and the client
do not justify wholesale entrustment of the representation to a nonlawyer
agent, assistant, or employee. Lawyers
who do so risk professional discipline as they can be held accountable
for the errant or dishonest acts committed by nonlawyers
so entrusted. See e.g., In re Krueger,
A04-303 (Minn. 07/12/04) in which a 30-day suspension resulted from
inter alia the
lawyer’s failure to supervise a nonlawyer
investigator who settled the injury claim of a deceased client, secured
a forged endorsement on the settlement check and releases, and caused
the lawyer to distribute settlement proceeds to the deceased client’s
wife. The Pietsch decision makes it likely
that for now in-person solicitation of chiropractic patients will
continue. Lawyers who work
closely with the chiropractic community need to appreciate the significant
distinctions between chiropractic and lawyer regulations when it comes
to soliciting clients. NOTES 2. A “runner” is “a person whose business
it is to solicit patronage or trade.” The
Random House Dictionary of the English Language 1683 (2d ed. 1987).
A “capper” is “a lure, decoy, or steerer
especially in some illicit or questionable activity.” Webster’s
Third New International Dictionary 333 (10th ed. 1993). Pietsch, slip op. at p. 9, n.1. 3. Pietsch was
also charged with other misconduct that was not resolved by the Board’s
summary disposition on the solicitation charges.
These charges apparently remain pending before the Chiropractic
Board and include instructing interns how to falsify bills and reports
to defraud insurers and instructing interns that they could care for
non-English speaking patients without communicating with the patients
about their medical problems. 4. The Court of Appeals reversed a Chiropractic
Board finding that Pietsch had engaged in
improper fee splitting with the Xiongs by
virtue of his payments totaling $71,000 in 1999 and $95,000 in 2000. 5. Lawyers can solicit clients in writing
provided they include the word “advertisement” clearly and conspicuously
at the beginning of any written solicitation letter to a prospective
client. See Rule 7.2(f). 6. See e.g., In re Charges of Unprofessional
Conduct Against 97-29, 581 N.W.2d 347 ( 7. Rule 8.4(a) provides in relevant part
that it is unprofessional conduct to assist or induce another to violate
the Rules of Professional Conduct or to violate the Rules through
the acts of another. 8. Lawyers can in essence pay referral fees
to other lawyers by ent 9. Family members and former clients are
excluded from the in-person and telephonic solicitation law. See Rule 7.3. KENNETH L. JORGENSEN is director
of the Office of Lawyers Professional Responsibility.
He has served the cause of lawyers' self-regulation in |
