Being involved in a motor vehicle accident or being stranded on the side of the road due to mechanical failure is a stressful situation for the driver. He or she may be in a strange location and might be reeling from physical injuries or property damage. Unfortunately, other individuals and businesses will try to turn tragedy into profits by sharking out these incapacitated vehicles or injured drivers and solicit business. It may be a tow truck driver that “happens to be in the area” and quotes a ridiculous rate. It may even be a personal injury attorney that pressures the driver to hire him for a future lawsuit. In a state of panic and confusion, the driver may agree to any offered service that they might not have otherwise with more careful research and investigation. Michigan law prohibits these opportunists and ambulance chasers from taking advantage of these people within a certain amount of time from the accident.
SOLICITING BUSINESS BY WRECKERS OR TOWING SERVICES (MCL 257.676c)
“[A] person shall not travel to the scene of a motor vehicle accident or a disabled vehicle located on public property, property open to the public, or a state trunk line highway and solicit business for a wrecker, recovery, or towing service.” MCL 257.676c(1).
However, this law does NOT apply if any of the following conditions apply:
- “A law enforcement agency having jurisdiction over the scene of the accident or disabled vehicle, or an individual involved in that accident or disabled vehicle, requests the owner or operator of a wrecker or towing service to come to the scene.” MCL 257.676c(2)(a).
- “A wrecker, recovery truck, or tow truck operator, who does not travel to the scene of a motor vehicle accident or disabled vehicle for the purpose of soliciting business for a wrecker, recovery, or towing service, offers assistance to a stranded motorist without creating a nuisance or interfering with management of a motor vehicle accident by law enforcement.” MCL 257.676c(2)(b).
“[T]he law enforcement agency at the scene shall permit an owner or operator of a motor vehicle to request the towing, wrecker, or recovery service or roadside assistance service of his or her choice unless the vehicle is involved in a suspected criminal activity, fatality, or law enforcement investigation, if the vehicle is being impounded, or if the requested preference wrecker service is unavailable or cannot respond within a timely manner and the vehicle is creating a road or safety hazard as determined by law enforcement at the scene.” MCL 257.676c(3).
A person who violates this law is responsible for a civil infraction and shall be ordered to pay a civil fine of $1,000.00.
SOLICITING BUSINESS BY LAWYERS FOR PERSONAL INJURY CLAIMS (MCL 750.410)
A person, firm, partnership or organization of any kind that solicits a person injured as the result of an accident (or his or her administrator, executor, heirs, or assigns, his or her guardian, or members of the family of the injured person) for the purpose of representing that person in making a claim for damages or prosecuting an action or causes of action arising out of a personal injury claim against any other person, firm, or corporation, or to employ counsel for the purpose of that solicitation is GUILTY of a misdemeanor punishable by a fine up to $750.00 or up to 6 months in jail, or both. MCL 750.410(1).
- Any member of the partnership, firm or organization that consents to, participates in, or aid and abets an improper solicitation of a personal injury claim is subject to the same penalty as those individuals who directly or indirectly caused the solicitation.
- Any fee agreement or contract entered into by the injured person as a result of this solicitation is VOID.
- This law does not apply to an unsolicited contract entered into by a person, firm, or corporation with an attorney duly admitted to practice law in this state.
Any person, firm or corporation who, for any consideration and without the prior written permission of a patient or his or her personal representative or some other legal authority, furnishes, receives, buys, offers to buy, sells, or offers to sell, directly or indirectly, the identity of the patient or any information concerning the treatment of the patient, including, but not limited to, information contained in the files or records of a health care facility, health care provider, or insurance company, is guilty of a misdemeanor punishable by a fine up to $750.00 or up to 6 months in jail, or both. MCL 750.410(2).
SOLICITING BUSINESS BY PERSON FOR BUSINESS WITHIN 30 DAYS OF MOTOR VEHICLE ACCIDENT (MCL 750.410b)
A person shall not intentionally contact any individual that the person knows has sustained a personal injury as a direct result of a motor vehicle accident, or an immediate family member of that individual, with a direct solicitation to provide a service until the expiration of 30 days after the date of that motor vehicle accident UNLESS EITHER OF THE FOLLOWING APPLY:
- The individual or his or her immediate family member has requested the contact from that person. MCL 750.410b(1)(a).
- The person is an employee or agent of an insurance company and the person is contacting the individual or his or her family member on behalf of that insurance company to adjust a claim. This does not apply to a referral of the individual or his or her immediate family member to an attorney or to any other person for representation by an attorney. MCL 750.410b(1)(b).
As used under this law:
- “Direct solicitation to provide a service” means a verbal or written solicitation or offer, including by electronic means, made to the injured individual or a family member seeking to provide a service for a fee or other remuneration that is based upon the knowledge or belief that the individual has sustained a personal injury as a direct result of a motor vehicle accident and that is directed toward that individual or a family member. MCL 750.410b(2)(a).
- “Immediate family member” means the individual’s spouse, parent, child, or sibling. MCL 750.410b(2)(b).
- “Personal injury” means any physical or mental injury, including wrongful death. MCL 750.410b(2)(c).
Any person that violates this law is guilty of a misdemeanor punishable as follows:
- For a first offense, by a fine up to $30,000.00. MCL 750.410b(3)(a).
- For a second or subsequent offense, by a fine up to $60,000.00 or up to 1 year in jail, or both. MCL 750.410b(3)(b).
- The court may order the offender to pay the costs of prosecuting this criminal offense. MCL 750.410b(4).
Not only does the lawyer soliciting a personal injury claim or motor vehicle claim risk criminal prosecution, but they are also jeopardizing their livelihood. The Michigan Rules of Professional Conduct proscribe how attorneys should behave and penalizes unethical behavior. In particular, MRPC 7.3 states as follows:
- (a) A lawyer shall not solicit professional employment from a person with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. The term “solicit” includes contact in person, by telephone or telegraph, by letter or other writing, or by other communication directed to a specific recipient, but does not include letters addressed or advertising circulars distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful, nor does the term “solicit” include “sending truthful and nondeceptive letters to potential clients known to face particular legal problems” as stated in Shapero v Kentucky Bar Ass’n, 486 US 466, 468; 108 S Ct 1916; 100 L Ed 2d 475 (1988).
- (b) A lawyer shall not solicit professional employment from a person by written or recorded communication or by in-person or telephone contact even when not otherwise prohibited by paragraph (a), if:
- the person has made known to the lawyer a desire not to be solicited by the lawyer;
- the solicitation involves coercion, duress or harassment.
“It is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct…” MRPC 8.4(a). An attorney may be reported to the Attorney Grievance Commission and could be subject to reprimand, suspension or even disbarment from the Attorney Discipline Board. In addition, any lawyer “having knowledge that another lawyer has committed a significant violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer shall inform the Attorney Grievance Commission.” MRPC 8.3(a). The State Bar of Michigan is a self-governing entity that requires its members to report when they suspect rule violations.
Remember, it is not solicitation if the driver or a family member reaches out to the tow service, wrecker or attorney for assistance first. However, unwanted and uninvited contact will not be tolerated and any violators will be subject to professional license sanctions and criminal justice. If you have further questions about unlawful solicitation or need legal representation, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.