Monday, June 6, 2011

UPDATE: Michigan adopts a 30 day waiting period rule

Last month I reported that Michigan adopted a new rule imposing a waiting period on certain types of communications sent to victims of accidents.  See here.  Here is a bit more information on the new rule.

As you probably know, the U.S. Supreme Court confirmed a state's authority to impose a temporary ban on attorneys' direct-mail solicitations to accident victims in Florida Bar v. Went For It Inc., 515 U.S. 618 (1995).  Following that decision, a number of jurisdictions have enacted a waiting period for attorney solicitation after accidents.  Last month, Michigan became the most recent state to do so.

The (5 to 4) decision in Went for it is controversial. Personally, I do not find it convicing at all. It simply does not follow the applicable precedent and doctrine.  Also, while claiming that the challenged rule was needed to advance the right to privacy of the victims, the rule did not prevent defendant's lawyers from invading that privacy.  It only applied to plaintiffs' lawyers. 

This problem has been addressed by some of the jurisdictions that have adopted waiting period rules since then, but not by all.  The newly adopted rule in Michigan was approved on a 4 to 3 vote by the Michigan Supreme Court.  The text of the new rule, which can be found here is not entirely clear on this point.

In one of the dissenting opinions, Justice Markman argues that the rule places small firms at an increasing economic disadvantage to the large law firm in terms of client solicitation.

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