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Bergman v. District of Columbia

January 14, 2010

SCOTT N. BERGMAN, APPELLANT,
v.
DISTRICT OF COLUMBIA, ET AL., APPELLEES.



Appeal from the Superior Court of the District of Columbia (CAB7992-06) (Hon. Judith Bartnoff, Trial Judge).

The opinion of the court was delivered by: Schwelb, Senior Judge

Argued October 1, 2009

Before BLACKBURNE-RIGSBY and OBERLY, Associate Judges, and SCHWELB, Senior Judge.

Scott N. Bergman, a member of the District of Columbia Bar, brought this action against the District of Columbia and the Members of the Council of the District of Columbia,*fn1 challenging the validity of the White Collar Insurance Fraud Prosecution Enhancement Amendment Act of 2006 ("the Act"), D.C. Law 16-144 (Act 16-340), 53 D.C. Reg. 2828 (effective July 25, 2006), codified at D.C. Code § 22-3225.14 (2009 Supp.). Bergman asserted that the Act unconstitutionally restricts his freedom of speech and constitutes impermissible "viewpoint discrimination." Bergman also alleged that in enacting this statute, the Council violated the District of Columbia Home Rule Act ("HRA"), D.C. Code §§ 1-201.01 et seq. (2007 Supp.) and the "separation of powers" doctrine by "usurp[ing] the judiciary's power to regulate the conduct of D.C. attorneys."

The trial judge rejected these contentions and granted the motions of the District and the Council Members for summary judgment. On appeal, Bergman contends that the trial judge erred in her ruling with respect to each of his claims. We affirm.

I. THE TRIAL COURT RECORD

A. Legislative Background

The Act makes it unlawful for "practitioner[s]" to solicit business from "a client, patient, or customer within 21 days of a motor vehicle accident with the intent to seek benefits under a contract of insurance or to assert a claim against an insured, a governmental entity, or an insurer on behalf of any person arising out of the accident." D.C. Code § 22-3225.14 (a)(1).*fn2 A "practitioner" is defined as "a person, licensed to practice a profession or trade in the District, whose services are compensated either in whole or in part, directly or indirectly, by insurance proceeds." D.C. Code § 22-3225.01 (9). The Act thus applies not only to lawyers, but to "all relevant practitioners (e.g., attorneys, health care professionals, and others licensed to practice a profession or trade in the District)." D.C. COUNCIL, REPORT ON BILL 16-208 at 1 (Feb. 7, 2006).

The Act contains several exemptions from this twenty-one day prohibition. It permits immediate solicitation of legal business from accident victims through the mail, and the proscription against in-person solicitation does not apply if there is a pre-existing relationship between the practitioner and the person solicited, or if the contact is initiated by the "potential client, patient, or customer."D.C. Code § 22-3225.14 (a)(2). The Act also provides that any release of liability executed within twenty-one days of an accident "without the assistance or guidance of legal counsel" is voidable within 14 days of the execution of such a release. D.C. Code § 22-3225.14 (d)(1). It further requires that any such release "shall contain a notice of the claimant's right to rescind conspicuously and separately stated on the release." Id. § (d)(2).

The Act was intended to address "an existing problem with practitioners (or their agents) soliciting accident victims." D.C. COUNCIL, COMMITTEE ON THE JUDICIARY, REPORT ON BILL No. 16-208 (hereinafter "REPORT") at 1 (Nov. 8, 2005). The Act also prohibits the Metropolitan Police Department (MPD) from releasing "reports of motor vehicle accidents" within twenty-one days of an accident to persons who are barred by § 22-3225.14 from soliciting clients, unless the individual requesting the report presents identification and certifies that he or she is eligible to obtain the report pursuant to the Act. D.C. Code § 5-113.06 (c). However, practitioners are authorized to receive accident reports immediately if they represent, under oath, that they will not use them to solicit in-person legal business within twenty-one days after an automobile accident. Councilmember Phil Mendelson, the Chairman of the Judiciary Committee, explained that the bill "is a consumer protection measure which serves to protect accident victims from being victimized a second time - by harassing phone calls and other personal contact looking for business out of the accident." REPORT, at 1. The Act was passed unanimously by the Council.

While considering the proposed legislation, the Council received extensive information regarding the practices sought to be prohibited and the effects of these practices upon victims of accidents and their families. The legislative record included, inter alia, sworn statements of persons who had been subjected to unwanted and intrusive solicitation at all hours of the day and night, testimony from representatives of several Bar groups, and articles in the press describing the specific practices of practitioners who engaged in this type of solicitation and also the practices of the practitioners' agents, known as "runners."*fn3 A detailed description of the kinds of problems that the Act was designed to address is contained in the July 12, 2005 testimony of Kenneth M. Trombly, a past president of the Trial Lawyers Association of Metropolitan Washington, D.C., before the Judiciary Committee, and we quote from that testimony at length:

Mr. Chairman, if you had the misfortune to be involved in a motor vehicle accident in the District of Columbia, you would very likely encounter the following scenario. There is a good chance that a person known as a runner would come to the accident scene. He or she might interfere with the ambulance personnel or other person there to help you. Before you leave the scene, the tow-truck operator might try to steer you to a certain law firm that pays him for referrals. At the emergency room you might likely be solicited by someone who is receiving a kickback from a lawyer. And then when you got home, hoping for a little peace and quiet, perhaps having a sleepless night due to the anxiety and the physical discomfort you are experiencing, you would be awakened early the next morning by persons calling you at home - because in the world of the runner, a man's home is not his castle.

They will have picked up the police report the night before or that very morning and will be on the phone, trying to convince you to let them come to your house with a retainer agreement so that you can hire a lawyer for whom they work. Even if you are not injured, or do not wish to make a claim, they would likely try to talk you into making a claim. "It's easy money," they would say. "Just go to this chiropractor - Just let me come by and I will have some papers for you to sign." By the end of the day you might have received dozens of such phone calls.

The runners pay signing bonuses to clients, they get kick-backs from some health care providers to steer people to their offices, they make promises of easy money and they encourage frivolous claims. There are also a small number of lawyers, who apparently make these calls themselves, and eliminate the middle man. Of course, intrusive, uninvited solicitation is no less offensive because a lawyer, rather than a runner, is making the call or the home or hospital visit.*fn4

According to the May 1, 2003 article in The Washington Post, see note 3, supra, one attorney stated that each year, he paid at least $100,000 to "runners."

Several accident victims, all of whom had suffered injuries ranging from sore backs and necks to headaches and, in one case, a fractured wrist, reported their experiences with solicitation practices of the kind described by Mr. Trombly. One of the victims was awakened by a telephone call at 6:00 a.m. on the day after the accident from a "seemingly desperate individual who wanted me to talk to his attorney," and he received multiple similar calls throughout the morning until he stopped answering the telephone. A second affiant promptly contacted his own attorney, and that attorney sent an investigator out to have me sign papers. In the meantime, someone else presented at my house and told me he was an investigator for an attorney. I signed the papers with him but he was not the investigator from my attorney but rather one for another attorney, whom I had never contacted.

Another victim reported calls from "5 or 6 attorneys who were trying to get my business[,]" and she stated that the calls all came between 9:00 p.m. on the evening of the accident and 6:30 a.m. on the following day. An attorney who was injured in an automobile accident wrote that she was released from the hospital at 1:00 a.m. with pain medication because her head and neck hurt "pretty badly." She stated that she received multiple telephone solicitations shortly thereafter, the first being from an "investigator" who called at 7:00 a.m., with a dozen more calls and voice mail messages before noon.*fn5 Bergman himself acknowledged in an affidavit that he made approximately 4,000 solicitations per year - i.e., an average of approximately eleven per day, seven days a week - and as the appellees point out, he was just one lawyer. Keith W. Watters, Esquire, who testified on behalf of the Bar Association of the District of Columbia on July 12, 2005, stated that "[r]unners and the lawyers who employ them have cast a shadow on the legal profession and the legitimate claims of injured parties." He added:

Once the accident report was viewed, the accident victim[s] and their family can expect an unrelenting barrage of telephone call[s] and in person solicitations starting at 5:00 a.m. in the morning. One victim reported 17 calls in one day. Runners are outlawed in 49 states. We would strongly recommend that the District immediately ban this distasteful and corrupt practice.

Taken as a whole, the legislative record supports a finding that even if no overly aggressive tactics were employed - a dubious assumption - the sheer number and frequency of the telephone calls and in-person contacts to which many accident victims were subjected in the immediate aftermath of an accident could be extremely disturbing and unsettling.*fn6

B. The Trial Judge's Ruling

On May 23, 2008, the trial judge granted summary judgment in favor of the defendants in a thoughtful and well-crafted order in which she rejected both of Bergman's challenges to the Act. The judge began by addressing the First Amendment issue. She described the conduct at which the Act was aimed as "commercial speech," and she held that it was therefore subject to "intermediate scrutiny." She concluded that the Act passed muster under this standard because it was narrowly drawn and because it directly and materially advanced a substantial government interest, namely, the protection of the privacy of citizens and consumers in the District of Columbia.*fn7

The trial judge was unpersuaded by Bergman's claim that the Act constituted "viewpoint discrimination." In support of that contention, Bergman relied primarily on R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377 (1992). The judge pointed out, however, that in R.A.V., id. at 388-89, the Supreme Court "recognized that state regulation of client solicitation by attorneys for remuneration is not viewpoint discrimination." The judge concluded that "[t]he restriction at issue here is not aimed at the content of speech, but at its secondary effects." She further explained:

The Supreme Court in R.A.V. also noted that no issue of content discrimination is raised where there is no realistic possibility that official suppression of ideas is afoot. 505 U.S. at 390. There plainly is no such realistic possibility here, given that the restriction is only for 21 days and that contacts by mail are permitted even during that period.

The judge noted that in Florida Bar v. Went For It, Inc., 515 U.S. 618, 620 (1995), decided three years after R.A.V., the Supreme Court upheld a substantially broader restriction of solicitation by attorneys than that imposed by the Act.

The trial judge also rejected Bergman's contention that the Act contravenes the HRA. She correctly described the issue presented as being whether this court's authority to regulate the practice of law is exclusive "so as to preclude the Council from exercising its police power to address matters that otherwise would clearly be within its legislative purview, if the legislation also restricts the professional conduct of attorneys." The judge disagreed with Bergman's claim, based on Banks v. District of Columbia Dep't of Consumer and Regulatory Affairs, 634 A.2d 433 (D.C. 1993) (Banks II), and In re Banks, 805 A.2d 990 (D.C. 2002) (Banks III), that this court's authority to regulate the practice of law is "exclusive." She observed (accurately) that the language in these decisions relied on by Bergman was dictum, and that it was based on an inaccurate citation of an earlier precedent.*fn8

The judge concluded that the Act does not violate the HRA because it "does not directly affect the organization or jurisdiction of the District of Columbia courts, nor does it interfere with the Court of Appeals' authority over Bar admission or attorney discipline." She described the Act's temporary restriction on in-person solicitation as "a narrowly drawn anti-fraud criminal and consumer protection statute intended to protect against harassment of motor vehicle accident victims and the invasion of their privacy, in the immediate aftermath of an ...


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