When I teach lawyer advertising and solicitation, I often pose the following hypothetical to my students: Is the use of social media like Facebook to reach potential clients permissible solicitation under the precedent of In re Primus (where the Supreme Court held that North Carolina could not bar an ACLU attorney from holding gatherings to inform women about their civil rights after they had been sterilized on condition of receiving public medical benefits) and Ohralk v. Ohio State Bar Association (decided the same day as Primus, with the Supreme Court holding that an ambulance chaser could be barred from soliciting clients at the hospital bedside). My hypothetical is now a reality–from Bloomberg News comes this article on how law firms are using Facebook to solicit medical victims (h/t Professor Elizabeth Tippett of Oregon Law, whose scholarship focuses on lawyer advertising and marketing, among other topics).
For ambulance chasers, persistence and a phone book just don’t cut it anymore. Law firms, which once relied on television commercials, billboards, and cold calling numbers in the white pages to find plaintiffs for medical lawsuits, have begun to embrace technology. To locate their ideal pharma victims more quickly and at lower costs, they’re using data compiled from Facebook, marketing firms, and public sources, with help from digital bounty hunters like Tim Burd.
Recently 750 personal injury and loss of consortium suits were dismissed in the famous (or infamous) Engle tobacco litigation because the the suits were brought on behalf of deceased persons or on behalf of parties claiming the loss of consortium with a deceased person. As this ABA Journal story reports, the Eleventh Circuit noted that a dead person cannot bring an personal injury claim in FL. (That’s why FL has survivorship actions.) In addition, like most states, FL merged loss of consortium into wrongful death where the primary victim is dead.
The twists and turns of the Engle litigation are truly incredible, and worth reviewing by anyone interested in tort law or aggregate litigation. But one thing is clear: the lawyers involved in these cases invested heavily in the litigation and, for the most part, are seasoned members of the plaintiffs bar.
The news that one of these law firms did not realize that hundreds of its clients were actually dead seems, therefore, incredible. Worse yet, the personal injury suits could have been saved had the proper party, a representative of the deceased, been the client. None of this is theoretically complex. But it seems that the law firm found it too expensive to individually review its 4000 client files in this litigation. One could say that this cost-cutting was penny-wise and pound foolish.
It is an interesting question whether anyone has standing to sue the firm for malpractice (in many states the answer would be no). My further question is whether this story helps us see the value of outside investment in litigation. An outside investor in the claims themselves (not the law firm) would have had an incentive to monitor the lawyers’ work and may have had the resources to help the lawyers do the investigations necessary to save the cases before the statute of limitations ran on them.