The opinion of the court was delivered by: Per Curiam
On Orders to show cause why respondents should not be disciplined.
This is an attorney-disciplinary case in which respondents were charged with violations of the Rules of Professional Conduct governing the solicitation of clients, in this case, the victims of a disaster. At the request of the Court, the matter was initiated by an investigation undertaken by the Committee on Attorney Advertising. The Committee's determination and disciplinary recommendations were reviewed by the Disciplinary Review Board. The Board's decision is before the Court based on the petition of the Office of Attorney Ethics.
Shortly before midnight on March 23, 1994, a gas line explosion rocked the Durham Woods apartment complex in Edison, completely destroying eight of the sixty-three apartment buildings. The blast displaced all 1500 residents from their homes. Luckily, no one was directly killed by the explosion, and relatively few people were physically injured. Unfortunately, however, many people lost everything they owned, including their cars.
The American Red Cross immediately established an emergency shelter in the Edison High School. The cafeteria was turned into a reception and food area, while the gymnasium was converted to a sleeping and living area. Witnesses described the atmosphere in the shelter as chaotic with residents appearing scared, disoriented, and distraught. Victims also found emergency shelter in several different local hotels.
After the press reported in several articles that attorneys were "preying" upon the victims, we ordered the Committee on Attorney Advertising (CAA) to investigate. Subsequently, four attorneys, Kenneth S. Oleckna, Charles E. Meaden, Raymond Eisdorfer, and Samuel V. Convery, and one law firm, Ravich, Koster, Tobin, Oleckna, Reitman & Greenstein, P.C., a/k/a TEAMLAW (TEAMLAW), were charged with violating Rules of Professional Conduct (RPC) 7.3(b)(1) and (4). The CAA recommended that Meaden be suspended for three months, that Oleckna, TEAMLAW, and Eisdorfer be reprimanded, and that the charges against Convery be dismissed pursuant to Rule 1:19A-4. The Disciplinary Review Board (DRB) considered the matter de novo and determined that Meaden should be reprimanded rather than suspended and that all charges against the other respondents should be dismissed.
The Office of Attorney Ethics (OAE) agreed with the recommendation of the CAA in each of the matters, including the dismissal of the charges against Convey. Accordingly, the OAE petitioned this Court to review the DRB's decisions concerning the other respondents. Respondents all filed letter briefs in opposition. On February 3, 1998, we granted the OAE's petitions for review and also dismissed the Convery matter.
The issue before us is whether the three attorneys and one law firm violated the provisions set forth in the Rules of Professional Conduct by soliciting clients after the mass disaster at Durham Woods. At the time of the events at issue here, RPC 7.3(b) stated in pertinent part:
A lawyer shall not contact, or send a written communication to, a prospective client for the purpose of obtaining professional employment if:
(1) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer; or
(4) the communication involves direct contact with a prospective client concerning a specific event when such contact has pecuniary gain as a significant motive except that a lawyer may send a letter by mail to a prospective client in such circumstances provided that the letter:
(i) bears the word "ADVERTISEMENT" . . . and
(ii) contains the following notice . . . "Before making your choice of attorney, you should give this matter careful thought . . . ."; and
(iii) contains an additional notice [that if the letter is misleading, the recipient may report the attorney to the CAA].
In In re Anis, 126 N.J. 448, cert. denied sub nom. Anis v. New Jersey Committee on Attorney Advertising, 504 U.S. 956, 112 S. Ct. 2303, 199 L. Ed. 2d 225 (1992), the Court considered the ethics implications of attorney solicitation of clients who were the victims or the surviving relatives of the victims of a disaster. The Court analyzed RPC 7.3(b) and its application to the actions of an attorney following the December 21, 1988, downing of Pan American Flight 103 in Lockerbie, Scotland. 126 N.J. at 452. In determining that the attorney should be publicly reprimanded for sending a letter of solicitation to the grieving family of a victim shortly after the disaster, we noted that the State may regulate commercial speech with laws "that directly advance a substantial governmental interest and are appropriately tailored to that purpose." Id. at 456. We ruled that the level of intrusion involved with the solicitation of grieving persons is such that proscribing that conduct implicates a substantial governmental interest and that RPC 7.3(b) directly advances this interest. 126 N.J. at 458-59. The Court found that the attorney's conduct fell within that governmental interest, reasoning that it was "patently offensive to the common sensibilities of the community because it intrudes upon the private grief of victims or their families, serves only to compound their sorrow, and solicits representation of them at a moment of their extreme vulnerability." Id. at 459.
Most important, the Court disagreed with the DRB's Conclusion that RPC 7.3(b)(1) requires proof that the attorney knew that the person he solicited was unable to make a reasoned judgment about obtaining counsel. 126 N.J. at 457. We found rather that RPC 7.3(b)(1) contained an objective standard for determining whether a prospective client would be able to make a reasoned judgment. 126 N.J. at 457.
The Court acknowledged the difficulty in drawing a bright line cutoff when solicitation may begin. Id. at 460. We referred the issue to the CAA to conduct a hearing to devise a "clearer line of vulnerability." Ibid. *fn1
Three years after Anis, the United States Supreme Court addressed the issue of attorney solicitation in Florida Bar v. Went For It, Inc., 515 U.S. 618, 115 S. Ct. 2371, 132 L. Ed. 2d 541 (1995). The disciplinary rules at issue in Florida Bar created a thirty-day blackout period after an accident during which attorneys could not, directly or indirectly, solicit accident victims or their relatives. Id. at 620-21, 115 S. Ct. at 2374, 132 L. Ed. 2d at 547. In upholding the ban on targeted solicitation, the Supreme Court noted that the ban serves the salutary purposes of "protecting the personal privacy and tranquility of citizens from crass commercial intrusions by attorneys upon their personal grief in times of trauma" and "forestall[ing] the outrage and irritation with the state-licensed legal profession that the practice of direct solicitation only days after accidents has engendered." Id. at 630-31, 115 S. Ct. at 2379, 132 L. Ed. 2d at 553-54.
The evils of in-person solicitation for pecuniary gain after an accident extend beyond intrusion upon private grief and tarnishment of the legal profession. See Anis, supra, 126 N.J. at 459; Florida Bar, supra, 515 U.S. at 630-31, 115 S. Ct. at 2379, 132 L. Ed. 2d at 553-54. Such solicitation presents an opportunity for "fraud, undue influence, intimidation, overreaching, and other forms of vexatious conduct." Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 462, 98 S. Ct. 1912, 1921, 56 L. Ed. 2d 444, 457 (1978). "[I]n-person solicitation may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection." Id. at 457, 98 S. Ct. at 1919, 56 L. Ed. 2d at 454. The "aim and effect of in-person solicitation may be to provide a one-sided presentation and to encourage speedy and perhaps uninformed decisionmaking; there is no opportunity for intervention or counter-education by agencies of the Bar, supervisory authorities, or persons close to the solicited individual." Ibid. "In-person solicitation is as likely as not to discourage persons needing counsel from engaging in a critical comparison of the 'availability, nature, and prices of legal services.'" Id. at 457-58, 98 S. Ct. at 1919, 56 L. Ed. 2d at 454. That such overreaching in-person solicitation in fact occurred in this case is evidenced by the fact that many of the clients initially procured by the respondents decided, when given sufficient time to reflect, that their best interest lay in representation elsewhere.
Further, a lawyer who engages in personal solicitation of clients may be inclined to subordinate the best interests of the client to his own pecuniary interests. Even if unintentionally, the lawyer's ability to evaluate the legal merit of his client's claims may falter when the Conclusion will affect the lawyer's income. A valid claim might be settled too quickly, or a claim with little merit pursued beyond the point of reason. These lapses of judgment can occur in any legal representation, but [the court] cannot say that the pecuniary motivation of the lawyer who solicits a particular representation does not create special problems of conflict of interest.
[Id. at 461 n.19, 98 S. Ct. at 1921 n.19, 56 L. Ed. 2d at 457 n.19]
Respondent Kenneth Oleckna, a partner in respondent TEAMLAW, learned on March 24, 1994, that there had been an explosion at Durham Woods. Oleckna and TEAMLAW decided to set up a mobile office for potential clients at the site. The next morning, Oleckna and TEAMLAW rented a "Winnebago-type recreational vehicle" (RV) and parked it 100 feet from the shelter that had been established at Edison High. By 9 p.m., no one had called, so Oleckna left.
The next morning, Oleckna returned to the RV after TEAMLAW received two calls from clients unable to come to the firm's office. Oleckna brought with him copies of the advertisement the firm was to run in the weekend paper and taped several copies of it to the windows of the RV. The advertisements thus identified the RV with TEAMLAW. Oleckna also had a case of toiletry kits supplied by TEAMLAW that he handed out to clients who were interviewed by him in the RV after having been referred there by the firm's principal office. Before leaving at the end of the day, Oleckna entered the high school and left the remaining kits on an empty table for victims to use; the kits did not bear any markings identifying them with TEAMLAW.
On Sunday morning, March 27, Oleckna received a phone call from the Edison Police Department telling him that they would tow the RV unless it was moved promptly. Oleckna then moved the RV to the Durham Woods apartment complex and parked it on the grass next to a trailer from which insurance adjusters were taking releases and paying residents. Later that day, Oleckna was forced to remove the RV from the grass, so he drove it home. On Monday, Oleckna drove the RV back to the apartment complex to handle the substantial number of telephone inquiries the firm had received after its advertisement had run in the Sunday papers. As clients continued to call the principal office, paralegals were dispatched from the RV to the clients' apartments to gather information and take care of necessary paperwork. The RV was returned to the lessor the next day.
The CAA found that Oleckna had violated RPC 7.3(b)(1). It felt that the RV, parked in close proximity to the victims and bearing multiple advertisements, evidenced an intent to target victims and initiate contact with them. The CAA also determined that because the decision to use the RV had been made by the firm, TEAMLAW should also be ...