The Advocate, Journal of the Nevada Trial Lawyer’s Assoc., Feb. 2008 issue.

In Las Vegas, you say the word “capping” to most people, and they think you are referring to what sports touts do.  But there is another, uglier meaning to the word.  It refers to those miscreant individuals who go about contacting persons who are injured and refer them to cooperative lawyers in return for a fee or payoff.
 
In some other states they call the people who do this sort of thing “runners.”  For whatever reason, in Nevada I hear them mostly referred to as “cappers.”  Call them what you will, they are scum.  And decent lawyers should have nothing to do with them.
 
The most common examples concern basically three situations.  One deals with people who actually go about with police scanner radios or similar in their cars and try to appear at accident scenes as “helpful” good samaritans, who have ulterior purposes in mind.  Believe it or not, such people exist.  Secondly are various sorts of personnel who are involved with initial accident duties, including tow truck drivers and those associated with tow and salvage yards.  The third category seems to be persons who have duties at emergency rooms or urgent care centers, typically not the doctors themselves but clerks, radiology technicians, nurse assistants, etc.  Sometimes these people will provide “hot leads” to other individuals who then aggressively go after the clients.
 
I remember when I first started to practice law in Las Vegas in the late 70s, there was a certain lawyer in Las Vegas who had a PI practice.  He was somewhat of a “character” who despite his “bend the rules” mentality, was generally well-liked by everyone.  It was commonly rumored that he would pay $50 here, $100 there, to various persons who might refer him cases.  Even though everyone knew, or thought they knew, this was going on, since he was apparently the only one doing it, it was looked at as an annoyance, maybe even a somewhat humorous one given, his personality traits.  The Las Vegas legal community was small in those days, maybe only fifty or fewer lawyers specializing in personal injury cases, so if someone was doing a lot of this sort of thing, people would find out.  That had the effect of keeping a lid on it, thankfully.
 
Then, I would say somewhere in the late 80s or early 90s, I started to hear disturbing news about things that were going on.  We had a lot more lawyers, and a lot of unscrupulous individuals were coming here from the Southern California area where, apparently,  some of their “games” were getting old, and they thought they could start pulling the same monkey business here in Las Vegas.  Thankfully, the FBI caught many of these individuals, and some of them went to prison.  In those days I heard numerous stories of people being approached at the scene of their accident by someone who had a blank retainer agreement asking them to have it signed.  I heard of lawyers who were contacted by persons who promised them that they could get cases at accident scenes for them for a cut of the action.  One lawyer actually videotaped one of these individuals making his pitch and turned it in to the State Bar.  I know more than one attorney who made complaints about this, and it seemed that, especially after the federal investigation into the “fraud ring,” this sort of blatant “capping” went out of style.  Sure, I would hear about the occasional tow truck driver or emergency room person who tried to refer one of my clients to this lawyer or that before they came to me, but it was relatively uncommon.  When I heard what I thought was a believable story, I would report it to the appropriate governmental officials, and they did what they could to put a stop to it with varying degrees of success.
 
Then, it seemed like two or three years ago, I kept getting more and more complaints from other attorneys about this sort of thing going on.  For whatever reason, they thought that in my role as an NTLA Board Governor and so forth, I could do something about it, so they would make their complaints to me.  The clients had gone to the tow yard and had more than one person at the tow yard trying to direct them to go to a certain attorney.  Or the tow truck driver tried to direct them to a certain attorney.  Or, they went to the trauma center, and had one or more people approach them there trying to get them to go to this or that attorney.
 
Some people had affidavits from clients attesting to what happened.
 
I have had other lawyers tell me that their clients who were asleep at the UMC hospital after a horrible injury would awaken in the room to find on their bedside table brochures from one or more attorney’s offices with retainer agreements.
 
The egregious nature of these incidents and the frequency of them, seems to have gathered a lot of steam the past two or three years.  Many of these situations have been reported, but oftentimes the State Bar, lacking “hard evidence” is unable to do anything. Many of the accused skate by claiming there is no hard evidence, and that it is just a competitor with a sour grape complaint.  I personally know that the State Bar is interested in this, and does work on the files; but given the shadowy nature of the situation and the cleverness of the perpetrators, it is difficult for them to come up with “rock solid” cases.
 
Recently, the local news media, both newspaper and television, has reported stories on this growing problem of cappers at a local towing company.  The fact is, yes, this was going on; and big money was involved; but, it was really only a couple or three lawyers who seem to be involved– not the vast majority, who think this sort of thing totally stinks. I know some  past NTLA presidents who are urging the State Bar to lobby for a law that would make capping a felony.  They are really sick of this.  I think all of us are.  We are tired of having our reputations spoiled by creeps who pay off tow truck drivers and hospital employees for cases.
 
Here is the point that I wanted to make.  This kind of junk (and I would like to use a stronger word) is totally unethical and illegal.  Many, many lawyers are totally angered by it, and they are complaining to me and others about it.  When the client is approached by one of these individuals, and he is offended by it, he will often go to his own (legitimate) attorney and complain.  These attorneys, like me, get very angry when we hear the stories.  We try to do things the right way, and we don’t like it when people cheat.  And that’s what it is in the end – cheating.  It’s not a smart business practice.  It’s not bending the rules.  It’s just plain old cheating.
 
Recently, a number of attorneys (and I would characterize most of them as fairly high profile) have come to me and told me that they are cooperating with one another as best they can to try to bring about an end to this.  They asked that I write an article saying that we are not going to just sweep this under the rug and let these “cockroaches” hide any more, that from now on we want to turn the light on this behavior.
 
If you are a young attorney, or new to p.i., you may have got the impression from the news media or insurance industry spokesmen  that many p.i. lawyers do this, and think, maybe I’m a chump not to consider it myself.  You may have heard so and so does it, and he’s driving a real fancy car.   Well, the fact is very few people do it.  The ones who do have to look themselves in the mirror every day and not gag, and I don’t know how they are able to do that.  Frankly “laughing all the way to the bank” is the excuse of total losers, in my opinion.  The people who make money off internet porno and telemarketing scams  laugh all the way to the bank too.  I put them in the same category as the lawyers who pay off cappers.  They all abandon integrity to make money–what’s the difference?
 
Jim Crockett and my partner, Andy Thomas, formulated a Code of Conduct for the members of NTLA, which our Board had adopted.  Every member of NTLA agrees to adhere by these rules.  Rule 4 says:
 

 I have also heard of lawyers who come here from other states who say that this is a common practice in other big cities, and Las Vegas is a big city, so wise up.  Wake up and smell the coffee.   Well, guess what.  This isn’t Philadelphia.  This isn’t Chicago.  This isn’t Los Angeles.  This is Las Vegas, and it still is, to some extent, a fairly small legal community, and we know what goes on, and people talk.  If you are pulling these sorts of stunts, don’t think you can hide under the radar for very long.  Eventually word gets out and people know what is being done and who is doing it.
 I want to encourage our members in the following way.  When you get a client who comes into your office and says that the tow truck driver, or someone at the emergency room or accident scene approached him and tried to get him to sign a retainer or go to a certain lawyer; or if you have a client who gets home after an accident and his phone is ringing with a call from one of these creeps, don’t just let it pass.  See if your client is willing to make out an affidavit about it.  Then send it in to the State Bar or whatever governmental authority you think is appropriate.  Just griping about the problem isn’t enough.  You have to have the courage to publicly expose these scam artists.