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Lawyer Solicits Football Players To Join Concussion Class Action

 

On Friday, I received a forwarded email that was originally sent to a group of football players by a lawyer named Billy Conaty, who works for a multi-state law firm named Montgomery McCracken.  Conaty introduced himself as a former NFL player, briefly described the pending concussion-based lawsuits pending against the NFL, and offered his phone and email in case the players desired more information.  The email is embedded, below.

[Name redacted],

Hope you're doing well, this is Billy Conaty.  Like you, I am a former NFL player.  I played 9 seasons on the offensive line before becoming an attorney. 

You may be aware that hundreds of former players are suing the NFL for allegedly covering up what it knew about the long-term affects of concussions.  It is not necessary that a player suffered a diagnosed concussion to join the lawsuit.  Players who have ever had any concussion like symptoms while playing such as a headache, dizziness, disorientation, getting your bell rung, seeing stars etc., qualify to join.  Many players are now experiencing post-concussion symptoms such as headaches, anxiety, depression, short-term memory loss, sleeplessness, etc. and are looking to hold the NFL accountable for their role in the alleged cover up.  

If you have any interest in joining this lawsuit please let me know and I can explain further.  Please feel free to call me at [Phone # redacted], or please email me with the best number to reach you. 

Thank you,

Billy Conaty

Upon receiving the email, I wondered aloud (on Twitter) as to whether the email, which appeared to clearly be a form of solicitation, was permissible.  I was thinking back to my Professional Responsibility class and the endless number of Rules of Professional Conduct that were stamped into my brain.  Specifically, the following Rule came to mind.

Information About Legal Services
Rule 7.3 Direct Contact With Prospective Clients

(a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted:

(1) is a lawyer; or

(2) has a family, close personal, or prior professional relationship with the lawyer.

(c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2).

Regarding sub-section (a), the football players are not lawyers and likely have no family, “close personal,” or prior professional relationship with Conaty.  Perhaps Conaty did not have a “significant motive” for “pecuniary gain,” however I am rather skeptical.  Moving on to sub-section (c), Conaty certainly failed to include the phrase “Advertising Material” at the beginning or end of the correspondence that was forwarded to me.  But sub-section (c) only applies if Conaty failed to adhere to sub-section (a).

After posting my comments on Twitter, others noted that their football clients received the same, or similar, messages from Conaty.

By Darren Heitner

Darren Adam Heitner, Esq., is a preeminent sports attorney and the founder of Heitner Legal, P.L.L.C., a Fort Lauderdale-based law firm specializing in sports law, contract negotiations, intellectual property, and arbitration. He earned his Juris Doctor from the University of Florida Levin College of Law in 2010 and a Bachelor of Arts in Political Science, magna cum laude, from the University of Florida in 2007, where he was named Valedictorian of the College of Liberal Arts and Sciences. Admitted to practice in the state bars of Florida, New York, and the District of Columbia, as well as multiple federal courts, Darren also serves as a certified arbitrator with the American Arbitration Association.

As an adjunct professor, Darren imparts his expertise through teaching Sports Law at the University of Florida Levin College of Law and Name, Image, and Likeness (NIL) at the University of Miami School of Law in the Entertainment, Arts, and Sports Law LL.M. program. His scholarly contributions include authoring several books published by the American Bar Association, such as How to Play the Game: What Every Sports Attorney Needs to Know, and numerous articles in prominent publications like Forbes, Inc. Magazine, and Above the Law. His thought leadership in NIL has earned him recognition as one of the foremost experts by The Wall Street Journal, USA TODAY, and On3, and he has been lauded as a “power player in NIL deals” by Action Network and a “top sports trademark attorney” by Sportico.

Darren’s passion for sports law led him to establish Sports Agent Blog on December 31, 2005, initially titled “I Want To Be A Sports Agent.” The platform, created as a New Year’s resolution, has grown into a cornerstone of the sports agency community, offering in-depth analysis of industry trends, legal disputes, and agent-player dynamics. His commitment to the field is further evidenced by his representation of numerous athletes and sports agents, as well as his prior role as an Adjunct Professor at Indiana University Bloomington, where he developed and taught a course on Sport Agency Management from 2011 to 2014.

Darren’s contributions have been recognized with prestigious honors, including the University of Florida’s 40 Under 40 Award, the University of Florida Levin College of Law’s Outstanding Young Alumnus Award, and designation as the best lawyer in Fort Lauderdale by Fort Lauderdale Magazine. He remains an active voice in the sports law community, sharing insights through his weekly NIL newsletter and his X posts, engaging a broad audience on legal developments in sports.

One reply on “Lawyer Solicits Football Players To Join Concussion Class Action”

I think it can be argued that email shouldn’t be considered real-time electronic contact. It is more like physical mail than say an online chat or texting. I do think that, if considered in that light, the email should include an “Advertising Material” label.

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