An examination of ‘Ambulance Chasing’
By Abigail Longacre
While there are many stereotypes about attorneys, the most popular is the stereotype of the ‘ambulance chaser’. While the term has become synonymous with highway billboards and commercials, ‘ambulance chaser’ originates from the aggressive solicitation practices of lawyers, typically those in personal injury. The term ‘ambulance chasers’ first appeared in the mid-to-late eighteenth century newspapers, reflecting how personal injury lawyers historically followed ambulances to quickly develop an attorney-client relationship.
This practice has questionable ethics, centering around taking advantage of those in vulnerable situations. However, very few personal injury attorneys actually engage in ambulance chasing practices, meaning this harmful stereotype is perpetuated by just a few. While some attorneys engage in predatory solicitation, the majority work within the strict ethical guidelines and regulations ensuring ethical legal and business practices. The ‘ambulance chaser’ label, therefore, diminishes the work of personal injury lawyers, who often find themselves fighting for disadvantaged members of society, who need legal intervention when faced with it. Thus, arguments for increased regulation of solicitation and legal malpractice guidelines inherently perpetuate these stereotypes, further delegitimizing the work of personal injury lawyers.
The American Bar Association also regulates solicitation. Rule 7.3 states that, “[1] Paragraph (b) prohibits a lawyer from soliciting professional employment by live person-to-person contact when a significant motive for the lawyer is doing so is the lawyer’s or the law firm’s pecuniary gain. A lawyer’s communication is not a solicitation if it is directed to the public, such as through a billboard, an Internet banner advertisement, a website, or a television commercial, or if it is in response to a request for information or is automatically generated in response to electronic searches” (ABA). This solid, legal definition of ethical legal practice advocacy protects against predatory solicitation practices. While anti-solicitation case law and ABA regulations exist due to genuine ethical concerns, they also solidify negative perceptions of personal injury attorneys. One can argue the continued implementation of such regulations can lead to disproportionate action for the seriousness of the issue, as ambulance chasing is an outdated practice only done by a few attorneys.
The first regulations against predatory client acquisition efforts in the Texas Penal code state barratry with the "intent to distress or harass" was illegal. In 1974 this was replaced with a new definition, detailing how barratry with the intent to obtain a benefit for themself or to harm another was illegal, further clarifying the intent to obtain an economic benefit for themself. The federal legal restrictions on solicitation were solidified in Ohralik v. Ohio State Bar Association (1978), an extreme example of ambulance chasing practices. After a serious collision between 18-year-olds Carol McClintock and Wanda Lou Holbert, and an uninsured motorist, local attorney Albert Ohralik visited McClintock in the hospital to extend an offer of representation. Ohralik also went to Holbert’s home, where he secretly tape-recorded her oral agreement to his representation. McClintock and Holbert ousted Ohralik and filed a complaint to the local bar association, which in then turned into a formal complaint against Ohralik with the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio (Board). The Supreme Court ruled that ‘ambulance chasing’ was not protected as free speech under the First Amendment, as because lawyers are “trained persuaders,” they are more equipped to exploit accident victims at their most vulnerable. Ohralik v. Ohio State Bar Association is an extreme example of predatory solicitation and does not reflect the profession as a whole. Thus, ensuring the privacy of victims following large accidents is an important ethical regulation, but extending the consequences of Ohralik’s actions to other attorneys by asserting that all lawyers are ‘trained persuaders’ perpetuates the harmful stereotype that lawyers are manipulators solely after large paychecks. Consequently, these stereotypes foster an environment of distrust; making lawyers more vulnerable to hostile clients or malpractice suits.
Like solicitation regulations, malpractice laws are intertwined with the regulation of ambulance chasing and the personal injury field. Within legal malpractice, there is a very high standard for success. To have a valid malpractice claim the plaintiffs must prove that their attorney: breached a duty of care, that this breach directly caused harm, and that they suffered damages as a result. This high standard is reinforced by cases like Viner v. Sweet (2003), where the plaintiffs received a positive verdict due to the substantial demonstration that their loss of revenue would not have occurred without the defendant’s malpractice. Hence, malpractice standards ensure that attorneys are held accountable while simultaneously discouraging plaintiffs from unfairly targeting attorneys. Consequently, lowering the malpractice threshold could result in frivolous suits from disgruntled clients with difficult cases. Malpractice suits would become easier to bring against smaller firms and solo practitioners. Increased vulnerability to malpractice suits could deter smaller practices from attempting to take on more difficult cases, a dangerous cost given that smaller legal establishments play a crucial role as they handle more difficult, individualized cases.
Small practices play significant roles in the legal market, making up 49% of all lawyers in 2016. Yet, small practices are often vulnerable in the market because attorneys must serve as both lawyers and business operators. Consequently, small practices rely on advertisement more than large firms or in-house counsel. Therefore, increased regulation of solicitation will have a disproportionate effect on smaller practices as a stricter definition of solicitation narrows advertising potential for firms. The difference between earnest advertisement and predatory solicitation is emphasized in Bates v. State Bar of Arizona (1977). In this case the Supreme Court ruled that restricting attorney advertising violated the First Amendment, emphasizing the crucial role that legal advertising has in informing the public of their rights and where to seek help to exercise such rights. Without advertisement to the public, many people may not realize the opportunity they have for legal recourse after an accident or wrongful termination. Later, Shapero v. Kentucky Bar Association (1988) reaffirmed the right for legal professionals to advertise by declaring a complete ban on written solicitation, like direct-mail advertising, as impermissible. The court decided a ban would simply be too restrictive, and any potential abuses of advertising tactic, “could be curbed by preapproval procedures rather than a complete ban.” These cases highlight the difference between historic cases of ‘ambulance chasing’ and the importance of advertisement for small legal practices.
The reality of personal injury law is more nuanced than stereotypical ‘ambulance chasing.’ Personal injury and disability lawyers play a vital role in ensuring those suffering from both a debilitating injury and suffocating medical bills are given the compensation needed to heal. Thus, personal injury lawyers help maintain the accountability of corporations, insurance companies, and employers. Thus, many of these attorneys do not just look for the biggest payout from the biggest disaster; they work tirelessly against large insurance companies that build their company by minimizing payouts. Consequently, not only does excessive regulation only reinforce negative stereotypes, but it makes a difficult job even harder. While some unethical practitioners exist, the overwhelming majority operate within strict ethical guidelines to provide justice to underserved individuals. Rather than reinforcing harmful myths, legal professionals should recognize the value these attorneys bring to those who need them most. Only once society moves past the billboard caricatures and grows to appreciate the true nature of legal advocacy will personal injury and disability attorneys receive proper praise for the crucial role they play in ensuring fairness in the American legal system.
