Attorney Advertising
Mail Solicitation
Direct mail solicitation has received protection from the Supreme Court. In Shapero v. Kentucky Bar Association, 486 U.S. 466, 475 (1988), the Court determined that mail solicitation could be distinguished from personal solicitation, and that mail solicitation could not be banned outright. Id. at 475. The court went on to state that:
A letter, like a printed advertisement (but unlike a lawyer), can readily be put in a drawer to be considered later, ignored, or discarded. In short, both types of written solicitation "convey information about legal services [by means] that [are] more conducive to reflection and the exercise of choice on the part of the consumer than is personal solicitation by an attorney." Nor does a targeted letter invade the recipient's privacy any more than does a substantively identical letter mailed at large.
Id. at 475-76. (citing Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 642 (1985)).
But mail solicitation is not without its limits. In The Florida Bar v. Went For It, 515 U.S. 618 (1995), the Court states that:
Rules of the Florida Bar prohibit personal injury lawyers from sending targeted direct-mail solicitations to victims and their relatives for 30 days following an accident or disaster. This case asks us to consider whether such rules violate the First and Fourteenth Amendments of the Constitution. We hold that in the circumstances presented here, they do not.
Id. at 620. The Court goes on to say that the government interest involved is preventing individual lawyers from engaging in conduct that would sully the reputation of lawyers in general when it states that:
The regulation, then, is an effort to protect the flagging reputations of Florida lawyers by preventing them from engaging in conduct that, the Bar maintains, "is universally regarded as deplorable and beneath common decency because of its intrusion upon the special vulnerability and private grief of victims or their families."
Id. at 625. But the Court is merely applying the Central Hudson Test to this regulation, determining that:
We believe that the Florida Bar's 30-day restriction on targeted direct-mail solicitation of accident victims and their relatives withstands scrutiny under the three-part Central Hudson test that we have devised for this context. The Bar has substantial interest both in protecting injured Floridians from invasive conduct by lawyers and in preventing the erosion of confidence in the profession that such repeated invasions have engendered.
Id. at 635. Therefore, this case is particularly useful in examining the application of that test to a particular state regulation.
The cases above support the proposition that the Central Hudson Test applies to direct mail solicitation, and such solicitation is protected speech without a State showing under that test that it has a substantial interest in regulating such advertising.
For more detailed information on attorney mail solicitation, see Carole R. Richelieu, Solicitation of Clients, 1-SEP Haw. B.J. 20 (1997) (discussing in person and mail solicitation); Melissa George, Let Sleeping Plaintiffs Lie: Restricting Attorneys' Rights to Make Direct-Mail Solicitation, 22 J. Legal Prof. 251 (1998).
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