Deflated Defiance: Cleveland firm's challenge of federal prosecution for soliciting air crashclients never gets off groundAuthor(s): TERRY CARTERSource: ABA Journal, Vol. 84, No. 6 (JUNE 1998), p. 34Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27840278 .

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NEWS

Deflated Defiance Cleveland firm's challenge of federal prosecution for soliciting air crash clients never gets off ground BY TERRY CARTER

The first challenge to a 1996 fed

eral law against lawyers con tacting air crash victims or their families for 30 days after the acci dent was settled quietly on the tar mac without leaving the ground.

A Cleveland firm that special izes in representing plaintiffs in air crash litigation, Nuren berg, Plevin, Heller & McCarthy, had claimed the law was vague in distinguishing between commercial and char tered flights. The firm had mailed solicitation letters within the 30-day period to the family of a federal worker killed in a Colorado chartered air crash.

When the Justice Department notified the firm in January that the government intend ed to seek civil penal ties for the solicitation,

Nurenberg, Plevin hast ily filed a pre-emptive claim in Cleveland fed eral court for declara tory and injunctive re lief. Nurenberg v. United States, No. 1:98-CV 0329 (N.D. Ohio). The United States still filed its suit in Denver federal court. United States v. Lebovitzy No. 98-WM-310 (D. Colo.).

Cash and Apology Accepted But it wasn't long before suit

and countersuit became a question of how much money and how con trite. The firm agreed to a fine of $8,000?$1,000 for each letter to the family of a victim?and one partner wrote a letter of apology.

That April 6 letter was signed by Nurenberg, Plevin partner Ja mie R. Lebovitz and addressed to Jim Hall, chairman of the Nation al Transportation Safety Board, which recommends prosecutions under the anti-solicitation provi sions of the Aviation Disaster Fam ily Assistance Act.

In the letter, Lebovitz said the

firm agreed not to contest the con

stitutionality of the law and that the act should be interpreted to in clude chartered flights.

"Any misconstruction of the act under the circumstances was based on a good faith belief in our interpretation and quite uninten tional," Lebovitz wrote.

Lebovitz, in an interview, said

The law firm contacted one victim's family within 30 days of this Colorado chartered plane crash, prompting Justice Department action.

he and his firm adhered to the 30-day rule when a commercial air liner crashed. They did not, howev er, follow it based on their reading of the law after the crash of a Scenic Airlines charter flight last October in which eight federal gov ernment employees died.

Shortly after Justice brought suit, Lebovitz was quoted in a Col orado newspaper as saying the act protects insurance companies by keeping plaintiffs aviation lawyers from investigating claims and pos sible wrongdoing.

The law, 49 U.S.C. 1136(g)(2), limits unsolicited communication for 30 days "in the event of an acci dent involving an air carrier pro viding interstate or foreign trans portation."

While the government insists that the wording clearly includes

chartered flights by a commercial carrier, Lebovitz takes issue with it in light of additional wording in a letter from the ntsb's Hall to Attor ney General Janet Reno on the day the government filed suit. In it, Hall refers to "litigation arising out of a commercial aviation accident."

Lebovitz says now that the government has more clearly stated its position?by bringing the litiga tion?he accepts it as guidance that is much like an attorney general's opinion on a statute.

Following the settlement, the ntsb's Hall issued this statement:

"It's important for the legal community to understand the need

for respect and com

passion in the wake of an air tragedy and to know that the ntsb takes very seriously its responsibility to as sist victims and their families."

The federal legis lation came on the heels of a 1995 Su preme Court decision upholding a similar Florida law. Florida Bar v. Went For It, Inc., 515 U.S. 618.

Some state bar ethics rules also may apply. The ntsb has an agreement with the ABA's Young Lawyers Division for the yld to act as a conduit to provide state bars with information concern

ing any breaches of the federal law. The bars then can determine whether disciplinary ac tion might be possible, as well.

At least eight states have rules prohibiting written solicitation of accident victims or their survivors for a specified time period, accord ing to the ABA Commission on

Advertising. The yld passed a reso lution at its midyear meeting en

couraging other states to adopt sim ilar rules, and it plans to forward the proposal to the ABA House of Delegates. Ohio does not have such a rule.

Indeed, the yld sent along information about Lebovitz's let ters to the family of a Colorado air crash victim, says Paul D. Car mona, chair of the section's Disas ter Legal Assistance Committee. The state bar found the matter vio lated none of its rules, he says.

34 ABA JOURNAL/JUNE 1998 AP PHOTO/ED ANDRIESKI

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