Anti-Solicitation Statute Declared Unconstitutional | The Schafer Law Office

Anti-Solicitation Statute Declared Unconstitutional


The Anti-Solicitation Statute, KRS 367.409(1), was declared UNCONSTITUTIONAL in the June 12, 2014 ruling of U.S. District Judge Charles R. Simpson for the Western District of Kentucky in Louisville. The recent decision declared the Anti-Solicitation Statute unconstitutional because it violated the Free Speech Clause of the First Amendment of the U.S. Constitution and the Equal Protection Clause of the 14th Amendment. This statute prohibited solicitation of motor vehicle accident victims for 30 days following the accident.

What does this mean for accident vicitms?
The law states (as defined in KRS 446.010) that a person shall not directly solicit or knowingly permit another person to directly solicit an individual, or a relative of an individual, involved in a motor vehicle accident for the provision of any service related to a motor vehicle accident. When we speak of “solicit,” it means initiating a communication in anticipation of financial gain or remuneration for value. With the court’s latest decision, chiropractors, tow truck drivers and even legal finance companies can now perform direct solicitation. The law does not apply to lawyers. This means that personal injury lawyers remain barred from soliciting clients by mail or in person within 30 days of the victim’s accident.

Related: Case Runners Should Have No Place In The Legal Profession

The law
According to KRS 21A.300, or the Prohibition against solicitation of professional employment from victim or relative of victim of accident or disaster, “an attorney or attorney referral service shall not directly solicit, or knowingly permit another person to directly solicit on their behalf, a victim of the accident or disaster, or a relative of the victim, for the purpose of obtaining professional employment relating to a criminal or civil action, or claim for damages, arising out of the traffic citation, injury, accident or disaster.” Likewise, a lawyer shall not knowingly accept a referral from an attorney referral service when that referral has resulted from the attorney referral service violating this prohibition.

As a Kentucky Personal Injury Lawyer, I fully understood this position. Kentucky accident victims should be careful of attorneys who contact them immediately after they or a loved one has been injured in an accident. In Kentucky, an attorney has to wait 30 days before making a direct solicitation. If the attorney fails to do so, they are clearly violating the Kentucky Bar Association ethic rules.

I am disappointed in the U.S. District Court’s ruling, although I understand it. Unfortunately, the law did not have enough penalties to persuade the activity of runners. It needs to be more specific and much harsher. When someone is injured and hurt after a car accident, they are vulnerable. Many of the runners who solicit these cases do not care about the treatment the victim receives. They only care about the money they will receive. This is a big business. A doctor or chiropractor will be reimbursed through the car accident victim’s PIP insurance money for their treatment. They are paid 100% of what they bill. If they bill the health insurance, then their bills are discounted up to 80%, so many only get 20 cents on the dollar. The loan companies charge high interest on loans, up to 25%, to give money up front. The accident victim is being taken advantage of, big time. These runners do not have the victim’s best interest in mind. It’s the same with many insurance companies. They contact the accident victim hoping to get them to settle for less money than they deserve.

Related: Court Strikes Down Anti-Solicitation Statute in Kentucky

Make the decision that is best for you
The bottom line is, accident victims need good solid information to make their decision on who to treat with and who to represent them. Research and hire the lawyer that is best for you. Be careful of anyone who comes knocking on your door. They may not have your best interest in mind. Take your time and do not make a decision or sign any documents until you have a chance to fully investigate and make the best decision for you.