Bergman v. District of Columbia

• Citation: 986 A.2d 1208
• Decision Date: 14 January 2010
• Docket Number: No. 08-CV-859.,08-CV-859.
• Parties: Scott N. BERGMAN, Appellant, v. DISTRICT OF COLUMBIA, et al., Appellees.
• Court: Court of Appeals of Columbia District

986 A.2d 1208

Scott N. BERGMAN, Appellant, v. DISTRICT OF COLUMBIA, et al., Appellees.

No. 08-CV-859.

District of Columbia Court of Appeals.

Argued October 1, 2009.

Decided January 14, 2010.

Michael T. Anderson, Washington, with whom Keira M. McNett and Jamin B. Raskin were on the brief, for appellant.

Richard S. Love, Deputy Solicitor General for the District of Columbia, with whom Peter J. Nickles, Attorney General, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for appellee District of Columbia.

John R. Hoellen, Deputy General Counsel, with whom Brian K. Flowers, General Counsel, was on the brief, for appellees Members of the Council of the District of Columbia.

Before BLACKBURNE-RIGSBY and OBERLY, Associate Judges, and SCHWELB, Senior Judge.

SCHWELB, Senior Judge:

Scott N. Bergman, a member of the District of Columbia Bar, brought this action against the District of Columbia and the Members of the Council of the District of Columbia,¹ challenging the validity of the White Collar Insurance Fraud Prosecution Enhancement Amendment Act of 2006 ("the Act"), D.C. Law 16-144 (Act 16-340), 53 D.C.Reg. 2828 (effective July 25, 2006), codified at D.C.Code § 22-3225.14 (2009 Supp.). Bergman asserted that the Act unconstitutionally restricts his freedom of speech and constitutes impermissible "viewpoint discrimination." Bergman also alleged that in enacting this statute, the Council violated the District of Columbia Home Rule Act ("HRA"), D.C.Code §§ 1-201.01 et seq. (2007 Supp.) and the "separation of powers" doctrine by "usurp[ing] the judiciary's power to regulate the conduct of D.C. attorneys."

The trial judge rejected these contentions and granted the motions of the District and the Council Members for summary judgment. On appeal, Bergman contends that the trial judge erred in her ruling with respect to each of his claims. We affirm.

I. THE TRIAL COURT RECORD

A. Legislative Background

The Act makes it unlawful for "practitioner[s]" to solicit business from "a client, patient, or customer within 21 days of a motor vehicle accident with the intent to seek benefits under a contract of insurance or to assert a claim against an insured, a governmental entity, or an insurer on behalf of any person arising out of the accident." D.C.Code § 22-3225.14(a)(1).² A "practitioner" is defined as "a person, licensed to practice a profession or trade in the District, whose services are compensated either in whole or in part, directly or indirectly, by insurance proceeds." D.C.Code § 22-3225.01(9). The Act thus applies not only to lawyers, but to "all relevant practitioners (e.g., attorneys, health care professionals, and others licensed to practice a profession or trade in the District)." D.C. COUNCIL, REPORT ON BILL 16-208 at 1 (Feb. 7, 2006).

The Act contains several exemptions from this twenty-one day prohibition. It permits immediate solicitation of legal business from accident victims through the mail, and the proscription against in-person solicitation does not apply if there is a preexisting relationship between the practitioner and the person solicited, or if the contact is initiated by the "potential client, patient, or customer." D.C.Code § 22-3225.14(a)(2). The Act also provides that any release of liability executed within twenty-one days of an accident "without the assistance or guidance of legal counsel" is voidable within 14 days of the execution of such a release. D.C.Code § 22-3225.14(d)(1). It further requires that any such release "shall contain a notice of the claimant's right to rescind conspicuously and separately stated on the release." Id. § (d)(2).

The Act was intended to address "an existing problem with practitioners (or their agents) soliciting accident victims." D.C. COUNCIL, COMMITTEE ON THE JUDICIARY, REPORT ON BILL No. 16-208 (hereinafter "REPORT") at 1 (Nov. 8, 2005). The Act also prohibits the Metropolitan Police Department (MPD) from releasing "reports of motor vehicle accidents" within twenty-one days of an accident to persons who are barred by § 22-3225.14 from soliciting clients, unless the individual requesting the report presents identification and certifies that he or she is eligible to obtain the report pursuant to the Act. D.C.Code § 5-113.06(c). However, practitioners are authorized to receive accident reports immediately if they represent, under oath, that they will not use them to solicit in-person legal business within twenty-one days after an automobile accident. Councilmember Phil Mendelson, the Chairman of the Judiciary Committee, explained that the bill "is a consumer protection measure which serves to protect accident victims from being victimized a second time—by harassing phone calls and other personal contact looking for business out of the accident." REPORT, at 1. The Act was passed unanimously by the Council.

While considering the proposed legislation, the Council received extensive information regarding the practices sought to be prohibited and the effects of these practices upon victims of accidents and their families. The legislative record included, inter alia, sworn statements of persons who had been subjected to unwanted and intrusive solicitation at all hours of the day and night, testimony from representatives of several Bar groups, and articles in the press describing the specific practices of practitioners who engaged in this type of solicitation and also the practices of the practitioners' agents, known as "runners."³ A detailed description of the kinds of problems that the Act was designed to address is contained in the July 12, 2005 testimony of Kenneth M. Trombly, a past president of the Trial Lawyers Association of Metropolitan Washington, D.C., before the Judiciary Committee, and we quote from that testimony at length:

Mr. Chairman, if you had the misfortune to be involved in a motor vehicle accident in the District of Columbia, you would very likely encounter the following scenario. There is a good chance that a person known as a runner would come to the accident scene. He or she might interfere with the ambulance personnel or other person there to help you. Before you leave the scene, the tow-truck operator might try to steer you to a certain law firm that pays him for referrals. At the emergency room you might likely be solicited by someone who is receiving a kickback from a lawyer. And then when you got home, hoping for a little peace and quiet, perhaps having a sleepless night due to the anxiety and the physical discomfort you are experiencing, you would be awakened early the next morning by persons calling you at home—because in the world of the runner, a man's home is not his castle.

They will have picked up the police report the night before or that very morning and will be on the phone, trying to convince you to let them come to your house with a retainer agreement so that you can hire a lawyer for whom they work. Even if you are not injured, or do not wish to make a claim, they would likely try to talk you into making a claim. "It's easy money," they would say. "Just go to this chiropractor—Just let me come by and I will have some papers for you to sign." By the end of the day you might have received dozens of such phone calls.

The runners pay signing bonuses to clients, they get kick-backs from some health care providers to steer people to their offices, they make promises of easy money and they encourage frivolous claims. There are also a small number of lawyers, who apparently make these calls themselves, and eliminate the middle man. Of course, intrusive, uninvited solicitation is no less offensive because a lawyer, rather than a runner, is making the call or the home or hospital visit.⁴

According to the May 1, 2003 article in The Washington Post, see note 3, supra, one attorney stated that each year, he paid at least $100,000 to "runners."

Several accident victims, all of whom had suffered injuries ranging from sore backs and necks to headaches and, in one case, a fractured wrist, reported their experiences with solicitation practices of the kind described by Mr. Trombly. One of the victims was awakened by a telephone call at 6:00 a.m. on the day after the accident from a "seemingly desperate individual who wanted me to talk to his attorney," and he received multiple similar calls throughout the morning until he stopped answering the telephone. A second affiant promptly contacted his own attorney, and that attorney sent an investigator out

to have me sign papers. In the meantime, someone else presented at my house and told me he was an investigator for an attorney. I signed the papers with him but he was not the investigator from my attorney but rather one for another attorney, whom I had never contacted.

Another victim reported calls from "5 or 6 attorneys who were trying to get my business[,]" and she stated that the calls all came between 9:00 p.m. on the evening of the accident and 6:30 a.m. on the following day. An attorney who was injured in an automobile accident wrote that she was released from the hospital at 1:00 a.m. with pain medication because her head and neck hurt "pretty badly." She stated that she received multiple telephone solicitations shortly thereafter, the first being from an "investigator" who called at 7:00 a.m., with a dozen more calls and voice mail messages before noon.⁵ Bergman himself acknowledged in an affidavit that he made approximately 4,000 solicitations per year—i.e., an average of approximately eleven per day, seven days a week—and as the appellees point out, he was just one lawyer. Keith W. Watters, Esquire, who testified on behalf of the Bar Association of the District of Columbia on July 12, 2005, stated that "[r]unners and the lawyers who employ them have cast a shadow on the legal profession and the legitimate claims of injured parties." He added:

Once the accident report was viewed, the accident victim[s] and their family can...