Maui residents are being saturated with advertisements for legal services in the wake of the Lāhainā and upcountry wildfires.
Ads have appeared on TV, radio and social media. But officials are cautioning survivors to be wary of legal fraud, and those who would take advantage of them when they are most vulnerable.
Bradley Tamm, Chief Disciplinary Counsel at the Office of Disciplinary Council under the Hawai’i Supreme Court, said there was once a time when lawyers weren’t allowed to advertise.
“The Supreme Court … in 1978, decided that free speech applied to lawyers as well. And that pretty much opened up the floodgates on lawyer advertising,” Tamm said. “Rules properly promulgated, about what is proper communications.”
Those rules include restrictions around solicitation. Attorneys are prohibited from soliciting employment by in-person contact, phone calls, text messages or emails, with few exceptions. Additional protections around advertising are in place for cases involving personal injury or wrongful death, protecting victims from attorney communications for 30 days.
The rules around advertising on social media are more challenging to enforce because the law was written before current platforms.
“Lawyers are allowed to do general things, like they can put an ad in the newspaper.” Tamm said. “When does targeted advertising using geolocators … become not a general advertisement, but a direct solicitation, an in-person solicitation?
"That is the brave new frontier, which is going to have to be ironed out. I have my opinions, but then, I'm a prosecutor," he continued.
Tamm said he has been monitoring the social media advertisements he’s seen so far.
“I had one of these law firms that I got over 30 of these Instagram posts … it’s messy right now.”
Laws against solicitation can help protect people from signing a legal agreement in haste, especially when they are vulnerable and may not be in a position to evaluate their options carefully.
For example, attorneys working in Hawai’i are required to be actively licensed here — or working with someone who is and who meaningfully participates in the case. But some unlicensed attorneys are recruiting clients anyway.
At the end of August, Tamm said his office had opened, or was in the process of opening, 14 active complaints in the aftermath of the upcountry and Lāhainā wildfires. Six more complaints were under review.
Lessons from the 2018 Camp Fire
Survivors of the 2018 Camp Fire in Paradise, California also saw scores of attorneys descend on the region after losing their town. Steve Crowder was one of thousands who lost his home. He was also serving as the town’s mayor at the time.
“The thing that happened here is these bigger law firms came into Paradise and they picked local attorneys that people knew and trusted. They'd have them go out into the community and basically sign people up,” he said. “So you thought you were signing up with a local attorney and then they turned around, and they handed it off to one of the big law firms.”
Crowder said he was unhappy with the legal representation he received. He had trouble getting information and felt crucial communication was sparse. He said he spoke with others in the community who shared his concerns.
Having endured a lengthy legal process that some would describe as a nightmare, Crowder warned Hawai’i fire survivors to be careful of who they choose. They could be working with that attorney for a long time. In his case, it’s been years.
Pacific Gas and Electric Company announced a $13.5 billion settlement with California fire survivors in 2019. In 2020, The PG&E Fire Victim Trust was created to distribute settlement funds after the company declared bankruptcy.
“It took two years to navigate the bankruptcy process before the trust was created, where people couldn't even start getting money,” Crowder said.
He cautioned survivors to investigate the attorney they will be working directly with, to make sure that it’s someone they can trust and who can clearly explain the process ahead. Be wary of anyone who makes excessive promises.
“Don't get caught up in the moment,” he said. “Ask the question, 'Are you who is representing me? And you're going to represent me throughout this process?'”
What to consider when selecting an attorney
When it comes to choosing an attorney, Chief Disciplinary Counsel Bradley Tamm said there are red flags to look out for. One is if an attorney tries to instigate a verbal agreement; all agreements are required to be in writing.
It’s also crucial to make sure the lawyer who signs the agreement is licensed to practice in the state.
“Some Hawai’i licensed attorneys don't live in Hawai’i. There's one of these big guys — I think it's a Texas or a Florida firm — which is practicing law here … they have on staff one or more attorneys who are licensed in the state of Hawai’i who live on the mainland. That makes it legal because they are admitted. But you should only be dealing with the Hawai’i licensed attorney.”
Clients who retain lawyers licensed to practice here are protected by the Hawai’i Lawyers’ Fund for Client Protection.
“What it is, is basically like an insurance policy. When a client leaves money with their lawyer, their lawyer can't steal it. If the lawyer dishonestly absconds with the money, the client can file a claim.”
Taking the time to vet potential attorneys can make all the difference for those who do decide to pursue legal action.
“We do not work on a rush to a race to the courthouse principle. It's not first in first gets a pot of gold,” Tamm said. “Don’t don't sit on your rights. You need to be diligent, you need to actively pursue your remedies. But don't be in a panic. Don't grab the first thing that walks in the door.”
Those who feel they have been contacted by an unlicensed attorney, or in a manner that violates Hawai’i’s laws, can file a complaint with the Office of Disciplinary Counsel. Attorneys licensed to practice in the state can be verified on the Hawai’i State Bar Association’s website.
This story aired on Aug. 29, 2023 on HPR-1.
