We all watched Danny DeVito, a para-professional, in the movie “The Rainmaker” sign up clients in the hospital.
While we laughed at the antics of DeVito teaching the young Matt Damon how to succeed after law school, capping is no laughing matter. In the Inland Empire, capping happens every day, at hospitals, in accident scenes, and in injury victims' homes. These cappers, at best, sign up and direct capped “clients” to lawyers to handle their injury or death cases; or at worst, the cappers direct the injury victims to non-lawyers to settle their cases. These acts are illegal and unethical. The problem is they are seldom prosecuted. Thus, there is no incentive to stop their lucrative predatory practices. Without consequences, those of us who engage in legitimate personal injury law, with legitimate marketing efforts, will continue to lose the opportunity to provide competent legal services to deserving injury victims who would otherwise reach out on their own to competent local attorneys.
What is a Runner or Capper?
What is the legal definition of a “runner” or “capper”? Business and Professions Code §6151 provides: “(a) A runner or capper is any person, firm, association or corporation acting for consideration in any manner or in any capacity as an agent for an attorney at law or law firm, whether the attorney or any member of the law firm is admitted in California or any other jurisdiction, in the solicitation or procurement of business for the attorney at law or law firm as provided in this article.” The keys to this definition involve “solicitation or procurement of business” as an “agent for an attorney,” for “compensation.” These runners and cappers come in all shapes and sizes. They can be ambulance or tow truck drivers, nurses in an emergency room, coroner’s assistants, even police officers, or true ambulance chasers using police scanners to listen for recent major accidents who show up at an accident scene. These individuals often get paid by attorneys on a per referral basis or are compensated for each client they sign up.
Conduct that is Considered Improper When Soliciting Injury Cases
Besides getting paid for referring cases, what additional conduct is improper? Business and Professions Code §6152 adds:
(a) It is unlawful for:
(1) Any person, in an individual capacity or in a capacity as a public or private employee, or for any firm, corporation, partnership or association to act as a runner or capper for any attorneys or to solicit any business for any attorneys in and about the state prisons, county jails, city jails, city prisons, or other places of detention of persons, city receiving hospitals, city and county receiving hospitals, county hospitals, superior courts, or in any public institution or in any public place or upon any public street or highway or in and about private hospitals, sanitariums or in and about any private institution or upon private property of any character whatsoever.
(2) Any person to solicit another person to commit or join in the commission of a violation of subdivision (a).
Any unrequested personal solicitation for compensation in any location for the purpose of referring the solicited individual to a lawyer or even non-lawyer is improper. Joining someone in the commission of the violation is similarly illegal.
Penalties for Improper Solicitation of a Personal Injury Case
These prohibitions come with several penalties, including for a first offense, a misdemeanor of up to one year in jail, or financial penalty not exceeding $15,000, or both. On a second or subsequent conviction, one to four years in confinement, $15,000, or both. If any public official engages in running or capping, and are found guilty, they forfeit the right to their office and employment. Business and Professions Code §6153.
For those attorneys who accept “capped” cases, besides criminal penalties, there are civil consequences. Business & Professions Code §6154 provides, “any contract for professional services secured by any attorney at law or law firm in this state through the services of a runner or capper is void.” Thus, a capped client has the right to cancel their contract without financial consequences or commitment. In a successful civil action against an attorney or law firm under the Unfair Practices Act, Business & Profession Code §§17000 and 17200, after establishing the case was capped, generally from the testimony of the former client, a judgment shall include an order divesting the attorney or law firm of any fees and other compensation received pursuant to any such void contract. Those fees and compensation shall be recoverable in addition to civil penalties allowed under B & P Code 17000, et al., and B & P Code 17200, et al. For example, if a capped case settles for $300,000, resulting in fees and costs of $120,000.00, the lawyer stands to lose the entire amount paid to the lawyer, in addition to civil penalties.
Our Rules of Professional Conduct further limit the nature of the contact that can be engaged in by an attorney to secure a legal services agreement. Rule 7.2 (Advertising), section (b) provides except in limited circumstances, “A lawyer shall not compensate, promise or give anything of value to a person for the purpose of recommending or securing the services of the lawyer or the lawyer’s law firm, . . ..” Rule 7.3 (Solicitation of Clients) further provides, (“a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment when a significant motive for doing so is the lawyer’s pecuniary gain, unless the person contacted:
(1) is a lawyer; or (2) has a family, close personal, or prior professional relationship with the lawyer. (b) A lawyer shall not solicit professional employment by written, recorded or electronic
communication or by in-person, telephone or real time electronic contact even when not otherwise prohibited by paragraph (a), if: (1) the person being solicited has made known to the lawyer a desire not to be solicited by the lawyer; or (2) the solicitation is transmitted in any manner which involves intrusion, coercion, duress or harassment.”
Despite Harsh Penalties, Cappers Continue to Illegally Solicit Cases
Despite these prohibitions, and the potential penalties associated with this conduct, lawyers, runners and cappers continue to engage in the illegal conduct of improper solicitation. Why? Because there is a lot of money available in securing significant cases before the injury victim leaves the hospital or before the family stops mourning the immediate loss of a loved one. When the pay day could be in the millions of dollars, and the seldom prosecuted criminal penalty is only $15,000, their benefits outweigh the risks of continued capping and improper solicitation.
As a member of the Western San Bernadino County Bar Association, I have proposed these three steps to start the process of curbing capping in the Inland Empire. First, working to identify those law firms who are capping cases, those who are engaged as cappers and those who are working on the inside of emergency or medical system to facilitate the capping. (This also extends to identifying those who are engaging in the unauthorized practice of law.) As a member of the public, it's important to be aware of this conduct and report it to The State Bar, the WSBCBA, and the local authorities.
Second, the WSBCBA has the interest of a deputy district attorney who is willing to assist in pursuing these cases on a criminal level. If “cappers” and those within hospitals, emergency services or otherwise, who are providing private information to “cappers” or lawyers about new injury victims, are held criminally responsible and their jobs are at risk, they may reconsider their activities. Additionally, they may agree to work with the authorities to expose the lawyers who are reaping the benefits of these unethical activities. The “cappers” need to know there are consequences to their actions.
Third, injury victims who have had their cases capped, need to know they have legal remedies which can amount to the recoupment of the entire amount paid to the attorney for the services rendered. To promote this ongoing effort, my firm is devoting a part of its practice to going after lawyers who are capping cases in the Inland Empire. I hope other law firms will do the same. I will be pursuing these cases on a contingency fee basis to help “capped” victims secure compensation for the illegal conduct engaged in by these lawyers. If lawyers realize their finances and their standing with the Bar are at risk, they may change their conduct and play by the rules.
Years ago, I asked a lawyer how he secured a particular case because I thought it was odd that he was representing this particular individual. There was no obvious geographic connection between the lawyer and the client. He simply told me that you don’t throw rocks in a glass house. His case, which settled for a high six figure amount, was capped. In another situation, I learned that a capper secured a “referral fee” in the six figures. In other instances I have lost the opportunity to sign a case because a capper convinced a potential client go with another attorney on the unfounded promise of big money for the case. More needs to be done in our community to expose and end this unabated illegal conduct.
Are You an Injury Victim Whose Case was Capped? Contact the Inland Empire Law Group Today.
If you were the victim of an accident and believe your case was capped, contact the Inland Empire Law Group today. I will be pursuing these cases on a contingency fee basis to help victims of capping secure compensation for the illegal conduct engaged in by these lawyers.