On an order to show cause why respondent should not be disbarred or otherwise disciplined.
For reprimand -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Handler, Justice, Concurring.
The familiar spectacle of lawyers and their agents preying on the victims of disaster has occasioned revulsion and prompted calls for reform. In the aftermath of the tragic release of poison gas at the Union Carbide plant in Bhopal, India, "American lawyers rushed to India in an attempt to retain clients and in their zeal brought shame and discredit to the American Bar." Eric S. Roth, Confronting Solicitation of Mass Disaster Victims, 2 Geo. J. Legal Ethics 967, 972 (1989) (Roth). The examples of abuse are chilling. Shortly after the crash of a Northwest airliner in Detroit on August 16, 1987, a man posing as a Catholic priest appeared on the scene to console the families of the victims. He "'hugged crying mothers and talked with grieving fathers of God's rewards in the hereafter. He even sobbed along with dazed families * * *. Then he would pass out the business card of a Florida attorney * * * and repeatedly urge them to call the lawyer.'" Roth, supra, 2 Geo. J. Legal Ethics at 972 n. 19 (quoting Matt Beer, 'Priest' at Crash Site Recommends Lawyer, Nat'l L.J., Oct. 5, 1987, at 3). After the crash of Pan Am Flight 103 in Scotland, one victim's widow reported solicitation "by no less than 30 attorneys within 24 hours of the crash." Ibid. (citing Andrew Blum, Lawyers Start Mapping Pan Am Crash Tactics, Nat'l L.J., Jan. 9, 1989, at 3, 20).
Other examples abound. "How much money would you like to get out of this case?" a letter asked the mother of a child who had recently suffered brain damage in an automobile accident. It was one of three letters she had received from attorneys within two weeks of her son's accident. In the same envelope was a police report with the lawyer's card stapled to it. In the view of an Oregon Bar Association commentator, "[s]uch a letter clearly offends common decency." Richard Sanders, Lawyer Advertising and Solicitation: the Good, the Bad, the Unethical, 50 Or. St. B. Bull. 5 (June 1990); see generally Linda S. Althoff, Solicitation after an Air Disaster: The Status of Professional Rules and Constitutional Limits,
54 J. Air. L. & Com. 501 (1988) (Althoff) (discussing ethical and constitutional dimensions of solicitation).
The question in this case is whether the commercial speech guarantees of the First Amendment confer on lawyers the right to engage in such conduct -- conduct that clearly offends common decency. We think not and therefore disapprove the ruling of our Committee on Attorney Advertising, which held that such a solicitation letter cannot constitute unethical conduct because it is a protected form of commercial speech. We conclude that a public reprimand is the appropriate measure of discipline under the circumstances of this case.
This case arises from the tragic disaster on December 21, 1988, involving Pan American Flight 103 over Lockerbie, Scotland. On that homeward-bound holiday flight, American passengers, many of them college students, were the victims of international terrorism. One of the victims was Alexander Lowenstein, a student at Syracuse University and resident of Morristown, New Jersey. His remains were identified on January 3, 1989. The following day, respondent and his brother, Fady F. Anis, sent the following solicitation letter to Peter Lowenstein, Alexander's father:
Initially, we would like to extend our deepest sympathy for the loss of your son, Mr. Alexander Lowenstein. We know that this must be a very traumatic experience for you, and we hope that you, along with your relatives and friends, can overcome this catastrophe which has not only affected your family but has disturbed the world.
As you may already realize, you have a legal cause of action against Pan American, among others, for wrongful death due to possible negligent security maintenance. If you intend to take any legal recourse, we urge you to consider to retain our firm to prosecute your case.
Both my partner [Fady] and myself are experienced practitioners in the personal injury field, and feel that we can obtain a favorable outcome for you against the airline, among other possible defendants.
We would also like to inform you that if you do decide to retain our services, you will not be charged for any attorneys fees unless we collect a settlement or verdict award for you.
Before retaining any other attorney, it would be worth your while to contact us, since we will substantially reduce the customary one-third fee that most other attorneys routinely charge.
Please call us to schedule an appointment at your earliest convenience. If you are unable to come to our office, please so advise us and we will have an attorney meet you at a location suitable to your needs.
P.S. There is no consultation fee.
The hollow sentiments of the letter's opening line could only have deepened the family's suffering. On January 12, 1989, Peter Lowenstein filed a complaint with the Office of Attorney Ethics (OAE). The OAE referred the letter to the Committee on Attorney Advertising (Committee). A formal complaint alleged that respondent and his brother had improperly engaged in a written communication with a prospective client when they knew or should have known that the person's physical, emotional, or mental state was such that the prospective client could not exercise reasonable judgment in employing a lawyer. That conduct violates RPC 7.3(b)(1). An amended complaint charged the two attorneys with engaging in false and misleading advertising by sending a letter that was misleading and contained material misrepresentations in violation of RPC 7.1(a)(1). Respondent and his brother have raised a due-process challenge to the amended charge, seeking dismissal on the grounds of "unfairness." We have considered their procedural arguments and have concluded that under In re Logan, 70 N.J. 222, 231, 358 A.2d 787 (1976), they have been afforded "sufficient opportunity to meet the charge."
The attorneys also asserted that their conduct was constitutionally protected, citing Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 108 S. Ct. 1916, 100 L. Ed. 2d 475 (1988), and referring to an unanswered inquiry that they had sent to the Committee. Consideration of the full record convinced the Committee that clear and convincing evidence demonstrated that the attorneys had engaged in false and misleading advertising in violation of RPC 7.1(a)(1). The Committee reasoned that although the
letter stated that respondent and his brother Fady would substantially reduce the customary one-third fee, it did not state the amount of the fee and failed to indicate any range of fees for the legal services to be rendered. Indeed, it suggested that other attorneys would charge a one-third fee on a recovery, despite the rule that in the event of a recovery in excess of $250,000 no attorney may charge that amount absent a court order. See R. 1:21-7. The Committee also found that the letter misrepresented the professional backgrounds of both brothers for the purpose of retaining employment in potentially sophisticated litigation, a violation of RPC 7.1(a)(1). Respondent had been admitted to the bar in 1987 and his brother, Fady, in 1984. Neither brother was a certified civil or criminal trial attorney, and neither of them had ever tried a case to a Judge or jury or handled a personal injury matter involving the negligence of an airline. The Committee concluded that
[t]here is absolutely no basis in the record to suggest to the public that they were experienced practitioners in the personal-injury field in general and, implicitly, international aircraft litigation in particular. Their perception of themselves, if such was the case, was clearly erroneous. Their representation as to their experience constituted a false and misleading communication.
The Committee determined that without the misleading statement, the targeted direct-mail solicitation, notwithstanding the shocking circumstances in which it arose, was constitutionally protected. It reasoned that Shapero, supra, 486 U.S. 466, 108 S. Ct. 1916, 100 L. Ed. 2d 475, which had disapproved blanket bans on all targeted mail solicitation, required that result.
The Committee recommended that both attorneys be publicly reprimanded. The Disciplinary Review Board (DRB), which pursuant to our Rules of Procedure reviews such disciplinary recommendations, determined that clear and convincing evidence fully supported the Committee's Conclusion that respondent, Magdy F. Anis, had engaged in unethical conduct. It did not agree, however, that the facts merited discipline in the case of his brother, Fady F. Anis. Fady had been out of the State ...