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Preparation Breeds Success
December 2012
Michael P. Sullivan, Attorney
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Preparation (you and your client)
Pre-Hearing Briefs
Past Work, SGA, and Amended Onset Date Issues
Effective Exhibits
Direct Examination
Cross Examination
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PART II: Ethics in Marketing in the Digital Age
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Meet with your client at least 30 days prior to the hearing
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Complete (do this early on in the wait for a hearing):
o Form HA-4632 (Medication List)
o Form HA-461 (Medical Update
o Form HA-4633
o Background Questionnaire
o Review the ODAR ERE File 30-60 days before the hearing
• BIG TIP: Get the Cadocon converter and convert the file
NOTE THE
PAGINATION TO
HELP YOU CITE TO
AN EXHIBIT
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I use custom software embedded in my database manager
to parse the ERE file and generate Exhibit and Page
numbers and post them at the top and bottom of every
page in the PDF file. This makes is painfully easy to cite to
Exhibit and Page numbers.
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AtlasWare has a converter
Cadocon has a converter
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o
:(http://www.nooksoft.net/cadocon-screens)
o
TIP- download the SSA ERE file and then email it to your client. They love getting the file, but be
advised it will likely generate a phone call. However, they can read their own medicals and yell
at their doctor instead of you !
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SSA cases are paper intensive. The forms are duplicative
and can be mind numbing. Why bother with them?
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ODAR & the ALJ want them
You can theme your case story in them
Completing these forms forces you to assess your case
They become proof in the case file
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FIRST, FIRST, FIRST- look at the Alleged onset date (AOD) and
compare it to the earnings record.
o Are there reported earnings AFTER the AOD?
• Are these earnings from genuine work activity?
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Unemployment
Long term disability insurance proceeds
Short term disability insurance proceeds
Lump sum from a 401 K
Severance pay
Paid of accrued sick and vacation time
These are not
true
“earnings”
If the earnings rise to SGA level work and you cannot defeat that
issue, consider amending the onset date
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If what shows up on the earnings record AFTER the AOD is
truly “earnings”, then we first look to see if it is SGA:
Substantial Gainful Activity.
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If it is really SGA, then look to see
o Can an exception to the SGA rule apply?
o Can we work a closed period and get the client paid for time off
o Should we just amend the onset date and move on
• Look Out- do not amend your way into malpractice: make sure we still
have 12 months of disability if we amend the onset date
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First: if the work was not SGA, it is NOT Past Relevant Work
(No SGA, No PRW)
If it is SGA level work, then it may well be Past Relevant
Work and that work will be characterized by the SSA in
terms of Skill and Exertion
o Skills can be the kiss of death to SSA cases. Most people fluff up
their job skills- your job is to prevent that.
o Exertion can be difficult- Describe the past work in terms of maximal
lifting and frequent lifting and occasional lifting, posturals, ….
TIP: don’t forget to argue that any SGA level work more than 15 years
prior to the alleged onset date may be PRW, but it is not always relevant
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When you have a chance to describe your client’s past
work- cast the past work in terms of the client’s
impairments. The goal is to describe the work in such a
way so that the alleged impairment(s) preclude the past
work:
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If the claimant has carpel tunnel, and the past work required frequent
use of the hands for gross manipulation, be sure to fully explain how the
past work utilized the hands. If the claimant has a low back problem
and the past work required frequent twisting or bending, be sure to
clearly state that fact! If the past work required sorting or inspecting of
objects, and the claimant has a visual impairment, be sure to indicate
the size of the objects that were sorted and the criteria used to screen
the objects.
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When describing past work, be aware of how the SSA defines and
categorizes work:
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DEFINITIONS COME FROM: 20 CFR 404.1567 et seq, BUT the
Rulings are much more fun!
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SEDENTARY WORK : SSR 96-9p:
o lift no more than 10 lbs occas.
o Standing and walking no more than 2 hours TOTAL
o Req’s capacity for seeing, manipulation, carrying our simple instructions
o SSR 83-12 unskilled jobs are structured so that a person cannot
ordinarily sit or stand at will
o SSR 83-12 most unskilled sedentary jobs require good use of both
hands
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20 CFR 404.1567(b): Light work may require lifting up to
20 lbs occasionally and 10 lbs frequently, and “a good deal
of walking or standing.” TIP: “light” = usually over 2 hours
on your feet, but note work can be light bc of the lifting.
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SSR 83-14: most unskilled light work requires a person to
be standing or walking , lifting up to 10 lbs frequently,
occasional bending and stooping , unskilled light work does
not require fine use of fingers (mostly gross manipulation)
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Medium Work: 20 CFR 404.1567© lifting 50 lbs
occasionally and 25 lbs frequently
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Heavy Work : 20 CFR 404.1567(d) up to 100 lbs
occasionally, 50 lbs frequently
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Very Heavy Work: 20 CFR 404.1567(e): lifting over 100 lbs
and frequent lifting up to 50 ls.
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The Rulings can make a VE miserable!!!!!!
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SSR 85-15 light and sedentary work and Stooping
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Stooping, kneeling, crouching, and crawling are progressively more
strenuous forms of bending parts of the body, with crawling as a form of
locomotion involving bending. Some stooping (bending the body
downward and forward by bending the spine at the waist) is required to
do almost any kind of work,, particularly when objects below the waist
are involved. If a person can stoop occasionally (from very little up to
one-third of the time) in order to lift objects, the sedentary and light
occupational base is virtually intact. However, because of the lifting
required for most medium, heavy, and very heavy jobs, a person must
be able to stoop frequently (from one-third to two-thirds of the time);
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SSR 85-15 and “manipulation” for light and sedentary
work
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Fingering" involves picking, pinching, or otherwise working primarily with
the fingers. It is needed to perform most unskilled sedentary jobs and
to perform certain skilled and semiskilled jobs at all levels of exertion.
As a general rule, limitations of fine manual dexterity have greater
adjudicative significance — in terms of relative number of jobs in which
the function is required — as the person's exertional RFC decreases.
Thus, loss of fine manual dexterity narrows the sedentary and light
ranges of work much more than it does the medium, heavy, and very
heavy ranges of work
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NOTE: This Ruling also defines reaching and handling
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Direct from : SSR 85-15
Fingering: "Fingering" involves picking, pinching, or
otherwise working primarily with the fingers. It is needed to
perform most unskilled sedentary jobs and to perform
certain skilled and semiskilled jobs at all levels of exertion
Can a mental impairment generate an exertional limitation?
Mental impairments are generally considered to be
nonexertional, but depressions and conversion disorders
may limit exertion
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What are the basic demands of unskilled work? SSR 85-15
o The basic mental demands of competitive, remunerative, unskilled
work include the abilities (on a sustained basis) to understand,
carry out, and remember simple instructions; to respond
appropriately to supervision, coworkers, and usual work situations;
and to deal with changes in a routine work setting. A substantial
loss of ability to meet any of these basic work-related activities
would severely limit the potential occupational base. This, in turn,
would justify a finding of disability
o Tip- describe the past work in terms of the mental demands
Be sure to clarify time spent on feet (at one time, all day )
Did client have option to alternate sit/stand at his/her will
Did the job require prolonged sitting or standing at times
Did the job require any sustained fingering and
manipulations
What type of bending was required, how far and how often
Use of the hands, fine manipulations, how often, how long
What visual acuity was required.
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o
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If the work was a hybrid job, bring that out.
What were the mental demands as perceived by your client
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If you do this in a job description before the hearing, you are prepared,
the VE is prepared, and you can usually knock out past work, moot any
job skills, and get to Step 5 of the process.
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Skills levels are defined. See first 20 CFR 404.1565
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a) General. Work experience means skills and abilities you have acquired through
work you have done which show the type of work you may be expected to do. Work
you have already been able to do shows the kind of work that you may be expected
to do. We consider that your work experience applies when it was done within the
last 15 years, lasted long enough for you to learn to do it, and was substantial
gainful activity. We do not usually consider that work you did 15 years or more
before the time we are deciding whether you are disabled (or when the disability
insured status requirement was last met, if earlier) applies…..
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People will always fluff up their past work, be sure to clarify
the job skills issues. Ask, and as worker, did you:
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Make out employee schedules,
Hire or fire, do sales work
Perform employee evaluations,
Make bank deposits,
Close out cash drawers
Direct the work of others
Fill out reports,
Handle customer complaints
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Here is a tip: Basic Cashiering
in the DOT: at sedetnary is it
SVP 3 & up, and semiskilled, at
light it is unskilled. There is not
a sed unskilled cashier in the
DOT!
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Ok, so do we have a genuine job “skill”:
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What is a “SKILL”- SSR 82-41 (2):
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o A skill is knowledge of a work activity which requires the exercise of
significant judgment that goes beyond the carrying out of simple job
duties and is acquired through performance of an occupation which is
above the unskilled level (requires more than 30 days to learn). It is
practical and familiar knowledge of the principles and processes of an
art, science or trade, combined with the ability to apply them in practice
in a proper and approved manner. This includes activities like making
precise measurements, reading blueprints, and setting up and
operating complex machinery. A skill gives a person a special
advantage over unskilled workers in the labor market.
o It is the acquired capacity to perform the work activities with facility (rather than
the traits themselves) that gives rise to potentially transferable skills.
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Three Part test to transfer job skills:SSR 82-41(4):
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1) the same or a lesser degree of skill is required, because people are
not expected to do more complex jobs than they have actually
performed (i.e, from a skilled to a semiskilled or another skilled job, or
from one semiskilled to another semiskilled job);
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(2) the same or similar tools and machines are used; and
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(3) the same or similar raw materials, products, processes or services
are involved.
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SSR 82-41(4)(c ):
Age 55 or older and limited to sedentary work, “very little
vocational adjustment.”
See 20 CFR 404.1568(d) advanced age and limited to sed
work:
o we will find that you have skills that are transferable to skilled or
semiskilled sedentary work only if the sedentary work is so similar
to your previous work that you would need to make very little, if any,
vocational adjustment in terms of tools, work processes, work
settings, or the industry
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SSR 00-4p
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A skill is knowledge of a work activity that requires the
exercise of significant judgment that goes beyond the
carrying out of simple job duties and is acquired through
performance of an occupation that is above the unskilled
level (requires more than 30 days to learn).
Using the skill level definitions in 20 CFR 404.1568 and
416.968, unskilled work corresponds to an SVP of 1-2;
semi-skilled work corresponds to an SVP of 3-4; and skilled
work corresponds to an SVP of 5-9 in the DOT.
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SVP Rank
Time to learn the job skills
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1
Short demonstration only
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2
Anything beyond short demonstration up to and including 1 month
3
Over 1 month up to and including 3 months
4
Over 3 months up to and including 6 months
5
Over 6 months up to and including 1 year
6
Over 1 year up to and including 2 years
7
Over 2 years up to and including 4 years
8
Over 4 years up to and including 10 years
9
Over 10 years
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The SSA defines "substantial gainful activity" as "work
activity that involves doing significant physical or mental
activities. work activity that you do for pay or profit. Work
activity is gainful if it is the kind of work usually done for pay
or profit, whether or not a profit is realized…”
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As a practical matter, whether something is SGA level work
(and therefore PRW) usually comes down to how much a
worker earns from the work effort. However, even this
simple statement gets complicated once lawyers take a
stab at it!
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THRESHOLD ISSUE: Is it truly earned income, and of so, Is
it SGA: substantial gainful activity.
Monthly thresholds for SGA
Year
2005
2006
2007
2008
2009
2010
2011
2012
Blind
Non-blind
$1,380
1,450
1,500
1,570
1,640
1,640
1,640
1,690
$830
860
900
940
980
1,000
1,000
1,010
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If it is not SGA, it is not Past Work
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Ok, so we have actual earned income, and it seems to be at SGA level
earnings, can we get around it?
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Deduct Certain Impairment Related Work Expenses (IRWE)
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SSR 82-46: The law provides that, effective on or after December 1, 1980,
the cost of certain items and services that an impaired person needs in
order to work can be deducted from earnings in determinations as to SGA
even though such items and services are also needed for normal daily
activities. The cost of certain attendant care services, medical devices,
equipment, prostheses, and similar items and services may be deducted.
The costs of routine drugs and routine medical services are not deductible
unless the drugs or services are necessary to control the disabling
condition so as to enable the individual to work
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In Summary, any potential IRWE :
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must not be reimbursed by your employer or medical insurance,
it must be related to your disability, and
it must be required for you to successfully complete the tasks required
of you at your job.
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Doctor visits and attendant care paid for out of pocket can also be
considered an impairment related work expense if it is required to
prepare you for work, transport you to work, or attend to needs related
to your disability while you are at work.
Special transportation to work, vehicle modifications, or modifications
to your home may also be calculated and deducted as impairment
related work expenses
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So we have earned income above the SGA threshhold and cannot
deduct IRWE, what is the next trick?
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Unsuccessful Work Attempt (UWA)
o Work lasted < 3 months and ended or earnings were reduced below
SGA because of the health issues that are alleged to disabled the
claimant, it is a UWA and does not count as SGA (i.e. work)
o Between 3-6 months of work: works ends within 6 months because of
health problems AND:
•
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•
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Frequent absences due to health, or
Unsatisfactory work due to health, or
Work done during a period of remission, or
Work done under special circumstances
•
THEN NOT SGA, IT IS
AN UWA (SSR 84-25)
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Trick to using a UWA:
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There must be a significant break in the continuity of one’s
work before the worker can be considered to have begun a
work attempt that can be later found to be an UWA.
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Examples from SSR 84-25
o Out of work from 30 consecutive days bc of bad health, or
o Forced to change jobs or employers bc of bad health
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So, we have true earned income and SGA. We cannot deduct IRWE, we
cannot use a UWA, what next?
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Try to prove the work was not truly competitive, that is was done under
special circumstances or a sheltered work place
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Unusual conditions may be evidenced in many ways. For example, the person:
Required and received special assistance from other employees in performing the
job; or
Was allowed to work irregular hours or take frequent rest periods; or
Was provided with special equipment or was assigned work especially suited to the
impairment; or
Was able to work only within a framework of specially arranged circumstances, such
as where other persons helped him or her prepare for or get to and from work; or
Was permitted to perform at a lower standard of productivity or efficiency than other
employees; or
Was granted the opportunity to work, despite his or her handicap, because of family
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Self Employment: This is a special category and can
become real hornets nest. The idea is to take the evidence
of gross earnings and whittle away at them until we have
net earnings under the SGA threshold.
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SSR 83-34: complicated and it articulates a three part test.
A more simplified version exists in POMS; POMS DI
10510.010
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The Three Part test (any one can test can result in a finding
of SGA)
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1. Test One: Significant Services and Substantial Income
The individual's work activity is SGA if he or she renders
services that are significant to the operation of the
business, and if he or she receives from it a substantial
income; or
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Go to the Ruling to get the definition of significant and
substantial
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The test , continued
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2. Test Two: Comparability of Work Activity
The individual's work activity is SGA if, in terms of all
relevant factors such as hours, skills, energy output,
efficiency, duties, and responsibilities, it is comparable to
that of unimpaired individuals in the same community
engaged in the same or similar businesses as their means
of livelihood; or
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The test, continued
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3. Test Three: Worth of Work Activity
The individual's work activity is SGA if, although not
comparable to that of unimpaired individuals, it is,
nevertheless, clearly worth more than the amount shown in
the SGA Earnings Guidelines (see DI 10501.015) when
considered in terms of its effect on the business, or when
compared to the salary an owner would pay to an employee
for such duties in that business setting.
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Medical Updates
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You can do this on Form HA-4631 or, if you do a
Background Questionnaire you can add it to the end of that
document. Identify:
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Current treating providers over last 6-9 months;
Approximate date of last treatment;
Note any hospitals, E/R’s or tests, doing so separately, and
note the approximate dates of treatment.
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GOAL : Get an assessment form from a medical provider that meets your burden of
proof in the case.
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KEY : Know what you need to prove :
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Is my Claimant under 50 so that a RFC for less then sedentary work will win
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Claimant over 55, potential GRID pay with RFC for Light work
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Are transferrable skills at issue precluding an award, then: (1) go get a mental
assessment to moot those skills; or (2) get a RFC for an exertional level to which the
skills wont transfer
o
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Example: Pipefitting: this is skilled work, medium to heavy in exertion but the skills will not
transfer to sedentary work or light sit/stand work . If you can get your client restricted to this
exertion and have age on your side, it can become an easy win
If it is a spinal injury case, do not use a mental assessment form
Is it a cardiac case- always get “low stress” added to any physical restrictions to
erode the occupational job base. Almost all doctors will agree this is “wise.”
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Good Sources for a variety of Assessment Forms:
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James Publishing- book by Thomas Bush : Social Security
Disability Practice
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West Publishing- Book by Charles
T. Hall; Social Security Disability Practice
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Keep them SHORT- 2-3 pages
Topics to address
Types of claims (T-2, T-16, DIB DWB, DAC,…)
Filing date
Alleged onset date
Any post-onset work (it’s not SGA, amend the onset…)
Date Last Insured issues
Claimant’s age (at filing, as of AOD, as of DLI)
Claimant’s formal education
Past work (exertion and skill)
General schedule of medical impairments
Citations to compelling proof in the record (RFC’s!)
Why my client is disabled under the law- if it is credibility, say so
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WHY WE SHOULD WIN
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-Great earnings record (client would work if he could)
-Past work as really performed is precluded, no real skills at play
-Case is obvious GRID pay because client is now older (St. A. RFC)
-With this new proof we clearly meet a Listing
-We have a RFC from treating source and no contradictory
evidence
-Mental CE neutralizes job skills and with that, we are a GRID pay
-So much supporting objective evidence here, client will be
credible
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Be aware of onset date issues:
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Does the date make sense with a medical event (heart attack, stroke,
onset of seizures,…)
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Does the date conform with a traumatic event (car accident, fall,
fight,…)
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Is the onset something gradual, or mysterious pains that were later
diagnosed after some test.
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Are there reported earnings after the onset date
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Typical Goals when amending the onset date:
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to change the onset date to conform with the proof in the case,
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satisfy the ALJ from an evidentiary standpoint so s/he will
easily issue a favorable decision
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AND
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to secure a favorable decision for your client and not malpractice
along the way.
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Avoiding Malpractice when amending the onset date
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Tell your client benefits are calculated from the new date
forward
Tell your client that he is giving up some potential benefits
by amending, and that he has an absolute right to go
forward with the original onset date
Tell your client that the Title II program has a 5 full month
wait on cash benefits and 29 full months on Medicare. The
clock ticks from the new onset date
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Avoiding Malpractice when amending (cont)
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Tell your client that the SSI Program has financial income
and asset limits and reporting requirements- honest and
accurate reporting is on them. Remind them that is they
failed to accurately & fully disclose ALL income or assets
when they filed, there may be no SSI even though an ALJ
finds them disabled.
o Yes it happened to me. Client had acres of undeveloped land out of
county in his name. He NEVER disclosed it on the SSI app (that he
completed on his own), and later told us it was really “for his kids”
so it should not count. The D.O. picked up on it when processing
the ALJ’s decision for payment. NO SSI money!!!!
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Final tips (From hard earned knowledge)
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Get any amendment in writing from the client, even on a piece of
legal paper. Do not rely on statements made during the hearing.
Will you be able to get that oral record when you really need it
later in time?
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In that written amendment, have them confirm they discussed it
with you to their satisfaction
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If you amend your client out of Title II eligibility, put that in writing
too. Have them acknowledge any award is now just SSI
 Claimant
testimony: how bad can it get!
 Chronic
Mumblers
 The “Driver’s License” trap
 The “Drugs and Alcohol” trap
 Overselling with Props
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Here we will be showing short training videos I use to educate my clients. They
were scripted by yours truly to graphically illustrate what can happen when
clients are less than truthful or evasive. All of this has happened to me several
times in the past.
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What can I tell you in a few minutes- this topic can take ½ a
day or more!
Get Job Brower Pro by SKILLTran to use at hearings
(http://www.skilltran.com/jb_overview.htm)
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Quick Tips for questioning the VE
Get DOT numbers from the VE
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Check St Agency for postural limitations (use in a hypo if ALJ forgot)
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Check psyche CE’s for narrative restrictions to put in a hypo
(use the Axis IV GAF score for a hypo, frequently a point of contention)
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Change the ALJ’s hypo slightly
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Go to the Rulings we have talked about and ask the VE why their testimony
flies in the face of the SSA’s Rulings, and ask for their specific job research
sufficient to contradict the SSA’s national policy statement!
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 ETHICS
IN MARKETING IN THE DIGITAL AGE
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THIS IS AN ADVERTISEMENT- when to use it
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If we are dealing with the mediums of radio or recorded
telephone (just about anything but TV), does the disclaimer have
to go at the beginning and the end of the advertisement?
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No way, pick one or the other
Yes, put it both places
Neither, put it in the middle where people listen
It is a trick question, recorded phone calls are exempt
SCR 3.130(7.25)
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THIS IS AN ADVERTISEMENT- when to use it
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If the proposed advertisement is a standard 30 second TV spot,
how long must the disclaimer be shown on the spot?
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Just show it briefly at the beginning
Show it briefly at the end so people remember it is an ad
Show it briefly at both beginning and end
Show it the entire time, no exceptions
Show it when the lawyer has his/her name/address up on screen
Show it whenever a toll free number is displayed on screen
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THIS IS AN ADVERTISEMENT- when to use it
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If it is a TV spot of 60 seconds, how long must the disclaimer be shown?
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Since it is twice as long as a 30, the disclaimer must be up twice as long
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Treat it as the same as a 30 second spot
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With a 60 second spot, you must bookend the disclaimer, putting it at the
beginning and end
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The disclaimer is understood to be part of a 60 second spot and need not
be shown at all
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THIS IS AN ADVERTISEMENT
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If it is a TV spot of MORE than 60 seconds,?
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Enough of this- it does not matter- use the 30 second rule, it controls for
all TV spots
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Spots this long take us into “infomercial land” and we need only flash it
at the beginning because everybody knows we are selling something
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Spots greater 60 seconds are expensive and putting that disclaimer up
would “cheapen” the advertisement, so it is not needed
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I quit here. Just put the disclaimer up the entire time regardless of how
garish it may look
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Web pages and THIS IS AN ADVERTISEMENT
If it is a Web Page, must this disclaimer be displayed at the top, at the bottom, or just in the middle ( or all
places)?
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Yes, put it at the top, and the bottom, and the middle. It is all geek stuff anyway and they can make that thing
show up anywhere easily.
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The disclaimer is only at the top, always at the top, and on every Web Page at the top
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The disclaimer goes at the bottom stupid, that is where people scroll to and end up, so it is most effective
there and must be put there, on every page
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None of the above, this is a stupid trick question like we got in high school or when we took the Bar. Show it
once anywhere and be done with it.
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None of the above- Treat a Web Page as similar to written advertisement, and prominently display the
disclaimer on every page without the need to scroll around to find it (and frustrate the general public)
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Web stuff is newer advertising, and the Web can handle video, voice, and even chat clients- so treat it as a
hybrid of a radio spot, a TV spot and a written spot- so you must have that special disclaimer at the beginning
and at the end of every page.
 Web
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Pages, Video and the disclaimer
Can I embed a video message in a properly advertised Web Page
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Sure, no worries here just so long as the underlying Web Page is
properly approved by the Bar
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Sure, but be sure to take the time, effort and expense to get the
Video Message separately approved
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Sure, but put an extra disclaimer on the Web right under the
video message
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Sure but have the video spokesperson briefly say as part of the
video the disclaimer and if you do this in conjunction with an
approved Web Page, you are golden
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WHAT CAN I PUT IN MY ADVERTISEMENT
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Question: Are any of the following prohibited to place in your advertisement?
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That I speak a Foreign Language
My Banking References
That I take credit cards
My specific fees for very specific services
A range of fees for specific services without further explanation
My hourly Rate, and only that
My specific fee for a specific type of consultation
Can I just blindly compare my fees to those of other lawyers
My membership is a scientific society
My date and place of birth
Can I just simply compare myself to other lawyers in the community
Can I say that I got million for client X, and I can probably do it for you, so call me
now!
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KBA ADVISORY OPINIONS
If I want to fully avail myself of the protections of an Advertising
Commission Advisory Opinion process on my proposed advertising. How
early must I submit proposed advertising before I publish it for the
public to see ?
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30 days prior
Till they Rule
No need so long as it is submitted contemporaneously with the release
of the spot to the airways
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60 days prior
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10 days prior, it’s the basic safe harbor rule on advertising in Kentucky
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Advisory Opinions
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Ok, so I submitted the advertisement for an Advisory Opinion, how long must I wait
before I air it if I want the protection:
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30 days for the Commission to respond
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No need to wait to air it so long as it is submitted contemporaneously with going live
on TV, radio,…
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60 days for the Commission to respond
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10 days after submission, the other half of the safe harbor rule
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Wait till they get back to you, it’s the Bar stupid, don’t risk it
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HOW MUCH DOES THIS COST ME
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What is the fee, if any, for a basic submission of a 30 second TV spot to the Bar’s Attorney
Advertising Commission?
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There is no fee if you paid your Bar dues
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There is no fee if you have 50 or more pro bono hours for the prior year
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I don’t know, $50.00
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I don’t know, $75.00
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It is $175.00
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If you pay a one-time fee equal to your Bar Dues, that covers all submissions for that year.
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DIRECT CONTACT WITH POTENTIAL CLIENTS
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DIRECT CONTACT per SCR 3.130(7.09)
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I want to write a group of ten people who were spectators that
were injured in a bizarre sports mishap 3 weeks ago. I want to
offer my professional legal services. Two of the group are blood
relatives to me, and one is a current client- the rest I do not
know. I got their contact data from the current client, although
one of them told my client that he hates all lawyers (since his
divorce) and never wants to hear from one again. So, is there any
harm with a quick letter to the group?????
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DIRECT CONTACT
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Can I treat them all the same and send the group a form letter?
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Do I have to put the disclaimer “THIS IS AN ADVERTISEMENT” on my
letter. I mean this is a letter from a professional, on my firmletterhead,
and it is not some garish TV or radio ad.
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OK, if I put the disclaimer on my letter on it to be safe, can I make that
disclaimer in a much smaller font so long as it is at the bottom of the
page. I mean it is clearly there on the page for the entire world to see
and I am meeting the intent of the rule.
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DIRECT CONTACT
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If I put the disclaimer prominently on the actual letter so it is hard
to miss, is that enough. Do I have to put that disclaimer on the
envelope too (and pretty much guarantee it will go to the trash)
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Must I wait a time certain before I do this?
(HINT: Does the 30 day disaster rule as per SCR 3.130(7.60
apply)
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a "Disaster" shall mean the type of emergency or disaster that draws persons to
solicit clients. This includes, but is not limited to, air crash, major fire, explosion,
sea disaster, hazardous material contamination, flood, landslide, major rail or
traffic accident, earthquake, or other circumstances resulting in substantial loss
of life, substantial personal injury, or substantial property damage
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What exactly do I have to submit to the Bar about my
advertising:
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, You must submit enough information for the Commission
to be able review the proposed advertisement
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. TV spots and such need to be on a DVD playable by a
variety of common, popular media players. Radio spots
need to be on a CD, playable by Windows or iTunes.
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I want to buy email leads in KY- can I?
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KBA E-429 Participation in for-profit group marketing
Opinion dated 6/17/08
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o Can a lawyer participate in for profit group marketing?
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o Can a lawyer pay costs for such participation?
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o If a lawyer does this, is s/he responsible for advertising
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compliance?
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References: SCR: 3.130, Rule 5.4, KBA E-427, KBA E-428
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ASCR 3.130(7.09)(3)
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Have an Op-Out in your direct advertisements
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SCR 3.130(7.09)(2)
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What can I tell people about me?
SCR 3.130(7.15)