Thursday, February 2, 2012

New Jersey governor refuses to sign bill expanding waiting period rule

According to a recent report in the ABA/BNA Lawyers' Manual on Professional Conduct, an anti-solicitation bill (S 2316), which the New Jersey legislature approved January 9, died when Governor Christie opted not to sign it.  The bill stated that lawyers would have faced the prospect of going to jail if they sent written solicitations to accident victims—including people identified in motor vehicle accident reports—within 30 days of the incident.  The current waiting period provision in New Jersey (N.J. Stat. §2C:40A-4), which was enacted in 1999, makes it a crime for professionals to solicit accident victims via in-person, telephone, or electronic contact during the first 30 days following an accident.  The new bill would have extended that prohibition in two key ways. First, it would have applied the provision to written solicitation and, second, it would have outlawed solicitation of people identified in motor vehicle accident reports.

The choice of banning solicitation other than in writing is interesting and consistent with the proper analysis.  As you probably recall, in Florida Bar v. Went For It, the US Supreme Court decided that it would be constitutional for a state to impose a waiting period on written communication.  But the opinion was unconvincing and could not be reconciled with applicable precedent.

By limiting the waiting period provision to circumstances that present the so-called "Ohralik dangers" and refusing to extend it to cases of written communication, in which the Supreme Court has decided those dangers are minimal, New Jersey has adopted the correct view on the issue.

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