Attorney Advertising: The Marketing of Legal Services in the Twenty-First Century

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1 Attorney Advertising: The Marketing of Legal Services in the Twenty-First Century Kyle Lawrence Perkins* TABLE OF CONTENTS 1. INTRODUCTION II. HISTORY: EXTENDING FIRST AMENDMENT PROTECTION TO ATTORNEY ADVERTISING A. The First Amendment and Commercial Speech B. In-Person Solicitation C. The Central Hudson Test and Analyzing Attorney Advertising Restrictions D. Targeted Solicitation and the Expansion of First Amendment Rights for Attorneys Ill. FLORIDA BAR V. WENT FOR IT, INC A. Background B. The Opinion of the Court C. The Impact on the Future of Attorney Advertising IV. CONCLUSION I. INTRODUCTION The practice of law is both a business and a profession that requires attorneys to attract clients in order to be successful. Traditionally, however, attorney advertising or solicitation has been viewed as unprofessional.' According to this view, lawyers should attract clientele by developing a reputation rather than through marketing. 2 * Candidate for J.D., Gonzaga University School of Law, 2000; B.A., magna cum laude, Eastern Washington University, I would like to thank Father Robert Araujo for his time and guidance on this Article. I would like to give special thanks to Dave and Lorry Perkins, Joshua Perkins, Patricia Perkins, and Mary Cook for their constant support and love. I would also like to give special thanks to Professor Cheryl Beckett for her encouragement, guidance, and friendship. I. See Gregory H. Bowers & Otis H. Stephens, Jr., Attorney Advertising and the First Amendment: The Development and Impact of a Constitutional Standard, 17 MEM. ST. U. L. REV. 221, (1987). 2. Veronica Wooten Brace, Note, Limits on Marketing of Attorney Services, 8 U. FLA. J.L. & PUB. POL'Y 109, 110 (1996).

2 GONZAGA LAW REVIEW [Vol. 35:1 The First Amendment to the United States Constitution holds that "Congress shall make no law... abridging the freedom of speech." 3 The United States Supreme Court has extended First Amendment protections to many different forms of speech. However, the Court initially failed to extend constitutional protection to commercial speech. In fact, in 1942, the Supreme Court explicitly stated that the First Amendment did not apply to commercial speech. 4 In 1976, the Supreme Court recognized First Amendment protection for commercial speech for the first time. 5 Then, in 1977, the Court finally held that attorney advertising was constitutionally protected speech under the First Amendment. 6 Over twenty years have passed since the Supreme Court first decided that attorney advertising is entitled to constitutional protection. Since then, the Supreme Court, in a series of decisions, has categorized the types of attorney advertising that may or may not be regulated on a piecemeal basis. For instance, the Court struck down an absolute ban on attorney advertising, 7 but allowed a prophylactic ban of attorney solicitation. 8 Additionally, the Court has permitted targeted newspaper 9 and direct mail solicitation." The Supreme Court recently added a new issue to the mix, time-limited bans on direct mail advertisements. In the 1995 decision of Florida Bar v. Went For It, Inc., the Court upheld a Florida rule prohibiting the sending of letters to accident victims until thirty days after an accident. 1 The Court's holding was based on the fact that such conduct was overly intrusive and "beneath common decency because of its intrusion upon the special vulnerability and private grief of victims or their families."' 2 Barring such 3. U.S. CONST. amend. I. The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Id. The First Amendment is applicable to the states through the due process clause of the Fourteenth Amendment. Bigelow v. Virginia, 421 U.S. 809, 811 (1975) (stating that "[t]he First Amendment, of course, is applicable to the States through the Fourteenth Amendment"). 4. Valentine v. Chrestensen, 316 U.S. 52, 54 (1942) (stating that the First Amendment does not protect "purely commercial advertising"). 5. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 770 (1976) (holding that, under the First Amendment, pharmacists could advertise prescription drug prices). 6. Bates v. State Bar of Arizona, 433 U.S. 350, 384 (1977). 7. Id. at Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 448 (1978). 9. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 642 (1985). 10. Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 471 (1988) U.S. 618, 635 (1995). 12. Id. at 624 (quoting In re Anis, 599 A.2d 1265, 1270 (N.J. 1992)).

3 1999/00] ATTORNEY ADVERTISING conduct was a means for the Court to preserve the integrity of the legal profession. " The primary purpose of this Article is to examine and identify how the Court's decision in Florida Bar v. Went For It, Inc., will affect attorney advertising in the future. In doing so, this Article begins with an analysis of the evolution of commercial speech rights for attorneys by reviewing the significant United States Supreme Court opinions concerning attorney advertising. This Article then scrutinizes the opinion of the Court in Went For It and determines the impact the Court's decision will have on the legal profession's ability to effectively market its services. II. HISTORY: EXTENDING FIRST AMENDMENT PROTECTION TO ATTORNEY ADVERTISING A. The First Amendment and Commercial Speech The United States Supreme Court first recognized First Amendment protection of commercial speech in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc. 1 4 This case involved a challenge to Virginia's statute that prohibited pharmacists from advertising prescription drug prices. 1 5 The Court, in an opinion by Justice Blackman, invalidated the statute by holding that advertising was protected as commercial speech by the First Amendment. 16 The Court held that "maintaining a high degree of professionalism on the part of licensed pharmacists" was a valid interest of the state.1" The Court further held, however, that a ban on advertising was an ineffective means to ensure professionalism. 1 8 Explaining that the First Amendment protects both an individual's right to speech and the general public's right to receive that information,' 9 the Court ruled that the close regulation of the pharmacy profession ensured standards of professionalism, 20 and that the "free flow of commercial information" is an important societal interest. 2 ' Consequently, the 13. Id. at U.S. 748, (1976). 15. Id. at Id. at Id. at Id. at Virginia State Bd. of Pharmacy, 425 U.S. at Id. at Id. at 764.

4 GONZAGA LAW REVIEW [Vol. 35:1 Court found that a state may not ban information regarding prescription drugs from being disseminated to the general public. 22 A year after Virginia State Board of Pharmacy, the United States Supreme Court opened the door for attorney advertising in the case of Bates v. State Bar ofarizona. 23 Prior to this decision, bar associations disallowed all forms of attorney advertising. 24 Breaking this barrier, the Bates Court considered and applied the protections of the First Amendment to commercial speech by lawyers. 25 The Court held that a blanket suppression of attorney advertisement violated the First Amendment, and that attorney advertising deserved the same First Amendment protections as other forms of commercial speech. 26 In Bates, the petitioners were two Arizona lawyers who left their positions with a legal services program to open a law office they referred to as a "legal clinic. '27 Their goal was to offer "legal services at modest fees to persons of moderate income. "28 After two years of running their practice, they decided that their practice could not survive unless they could attract a larger clientele. 29 Accordingly, the petitioners began running advertisements in their local daily newspaper, offering to provide various legal services for specified fees. 30 The state bar determined that the advertisement was a 31violation of an Arizona Bar disciplinary rule banning attorney advertisement. Consequently, the Arizona Supreme Court censured the lawyers for conduct that was in direct violation of Arizona's Code of Professional Responsibility. 32 The United States Supreme Court, in an opinion delivered once again by Justice Blackman, examined whether lawyers "may constitutionally advertise 22. Id. at U.S. 350 (1977). 24. See Bowers & Stephens, supra note 1, at (outlining the regulation of attorney advertising from the English Common Law to the 1977 Bates decision). 25. Bates, 433 U.S. at Id. at , Id. at Id. 29. Id. Because the petitioners maintained low prices to be affordable to their target market, they had to maintain a high volume of cases in order to show profit. 30. Bates, 433 U.S. at Id. at 355. The disciplinary rule provided in part: "A lawyer shall not publicize himself, or his partner, or associate, or any other lawyer affiliated with him or his firm, as a lawyer through newspaper or magazine advertisements, radio or television announcements, display advertisements in the city or telephone directories or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf." Id. 32. Bates, 433 U.S. at 358. The sanction was reduced to censure because the Court, in agreement with the Board of Governors, felt that the attorneys' advertising "was done in good faith." Id.

5 1999/00] ATTORNEY ADVERTISING the prices at which certain routine services will be performed. '33 The Court considered and summarily rejected the following six justifications advanced by the Arizona bar to justify a ban on such advertisements: (1) the adverse effect advertising could have on the image of the bar and the justice system; (2) the "inherently misleading" nature of advertising legal services; (3) the adverse effect on the administration of justice; (4) the undesirable economic effects of attorney advertising; (5) harm to the quality of legal services; and (6) the difficulties of enforcing such bans. 34 The Court recognized the legitimacy of the bar's arguments but found none of the asserted interests strong enough to justify a prohibition of attorney advertising. 35 The Supreme Court concluded that truthful advertising about the terms and availability of certain routine legal services was a constitutionally protected interest under the First Amendment, and could therefore not be prohibited by the state. 36 The Court held that any statute or rule that unreasonably restricted or prohibited truthful advertising by attorneys would be in violation of the United States Constitution. 37 Although the Court in Bates found that an outright ban on attorney advertising violated the First Amendment, it was careful to limit its opinion by stating that certain attorney advertising could be regulated. 38 BecausetheCourt held that attorney advertising could be limited, state bars continued to heavily regulate attorney advertising. 39 After Bates, many states amended their attorney disciplinary rules to permit attorney advertising. Subsequently, many of the new rules implemented by the states specify the acceptable forms of advertising. n 33. Id. at Id. at Bates, 433 U.S. at Id. at Id. at Id. at 383 (stating specifically that "false, deceptive, or misleading [advertising] is subject to restraint"). 39. See Lloyd B. Snyder, Rhetoric, Evidence, and Bar Agency Restrictions on Speech By Attorneys, 28 CREIGHTON L. REv. 357, (1995). 40. See Judith L. Maute, Scrutinizing Lawyer Advertising and Solicitation Rules Under Commercial Speech and Antitrust Doctrine, 13 HASTINGS CONST. L.Q. 487, 500 (1986).

6 GONZAGA LAW REVIEW [Vol. 35:1 B. In-Person Solicitation One year after the Court's decision in Bates, the focus changed from attorney advertising to in-person solicitation. The Court reexamined two issues reserved in Bates in companion cases: In re Primus 4 ' and Ohralik v. Ohio State Bar Association. 42 In the first case, In re Primus, the Court considered whether an American Civil Liberties Union ("ACLU") attorney violated the First Amendment by writing a letter to a woman who had been sterilized by a state program, informing her that the ACLU was willing to file suit on her behalf. 43 The Court applied a political speech analysis and found that this activity was protected by the First Amendment as part of the ACLU's protected political work. 44 The Court held that, in political solicitation cases, the state must show an actual injury in order to retain a prophylactic rule. 45 The Court ruled that the state had failed to establish that the letter sent by the ACLU attorney was misleading, involved "an appreciable invasion of privacy," or afforded "opportunity for overreaching or coercion. ' 46 Accordingly, the Court concluded that the attorney's solicitation on behalf of the ACLU was protected under the First Amendment. 47 The case of Ohralik v. Ohio State Bar Association 48 involved an entirely different form of solicitation than that used in In re Primus. In 1974, attorney Albert Ohralik learned that an acquaintance, Carol McClintock, along with U.S. 412 (1978) U.S. 447 (1978). 43. In re Primus, 436 U.S. at Id. at Id. at Id. at The Court stated: The record does not support appellee's contention that undue influence, overreaching, misrepresentation, or invasion of privacy actually occurred in this case. Appellant's letter of August 30, 1973, followed up the earlier meeting- one concededly protected by the First and Fourteenth Amendments - by notifying Williams that the ACLU would be interested in supporting possible litigation. The letter imparted additional information material to making an informed decision about whether to authorize litigation, and permitted Williams an opportunity, which she exercised, for arriving at a deliberate decision. The letter was not facially misleading: indeed, it offered 'to explain what is involved so you can understand what is going on.' The transmittal of this letter - as contrasted with in-person solicitation - involved no appreciable invasion of privacy; nor did it afford any significant opportunity for overreaching or coercion. Id. (footnote omitted). 47. Id. at U.S. 447 (1978).

7 1999/00] ATTORNEY ADVERTISING another woman, Wanda Holbert, had been involved in an automobile accident. 49 Ohralik telephoned McClintock' s parents, who requested that he visit with them in their home before going to see their daughter in the hospital. 50 While visiting McClintock, Ohralik offered to represent her on a contingency fee basis. 51 McClintock refused to sign the agreement until she had an opportunity to discuss the matter with her parents. 5 2 Before leaving the hospital to visit McClintock' s parents a second time, Ohralik also attempted to see Holbert, but learned she had been released. 53 Shortly thereafter, Ohralik convinced McClintock to agree to his representation. 54 Next, without having been invited, Ohralik visited Holbert at her home and offered to also represent her on a contingency fee basis. 55 Initially, Holbert informed the attorney that she did not understand what was going on, however, she soon consented to his representation. 56 After both girls signed contingency fee agreements, they decided that they did not want Ohralik to represent them. 57 Ohralik insisted they were bound by their agreements. 58 The Supreme Court of Ohio suspended Ohralik indefinitely for solicitation of business by a lawyer through direct, in-person communication with a prospective client in violation of the Ohio Code of Professional Responsibility. 59 Ohralik appealed to the United States Supreme Court arguing that, under the First Amendment, in-person solicitation was entitled to the same degree of protection as attorney advertising. 60 The Ohralik Court held that in-person solicitation by attorneys was not entitled to the same protection that attorney advertising received under the First Amendment. 61 The Court distinguished Ohralik from Bates by concluding that in-person solicitation, unlike attorney advertising, presents the likelihood of 49. Ohralik, 436 U.S. at Id. at Id. at Id. 53. Id. 54. Ohralik, 436 U.S. at Id. at Id. 57. Id. at Ohralik, 436 U.S. at Id. at 454. The rule under which Ohralik was disciplined provides: "A lawyer shall not recommend employment, as a private practitioner, of himself or herself, his or her partner, or associate to a non-lawyer who has not sought the lawyer's advice regarding employment of a lawyer... OHIO CODE OF PROFESSIONAL RESPONSIBILrrY DR 2-103(A) (1970). 60. Ohralik, 436 U.S. at Id. at 461.

8 GONZAGA LAW REVIEW [Vol. 35:1 overreaching, the exertion of undue influence, and the invasion of the privacy rights of individuals. 62 The Court stated that "[u]nlike a public advertisement, which simply provides information and leaves the recipient free to act upon it or not, in-person solicitation may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection., 63 The Court further noted that the objective of in-person solicitation may be to encourage uninformed decision making by providing a one-sided presentation with "no opportunity for intervention or counter-education." 64 Consequently, the Court determined that in-person solicitation may actually "disserve the individual and societal interest, identified in Bates, in facilitating 'informed and reliable decision making.' 65 Thus, the Court determined that the state had a legitimate interest in having a prophylactic regulation and banning in-person solicitation was an appropriate measure. 66 In sum, in-person solicitation is generally prohibited for attorneys who desire to market their services. However, nonprofit organizations with nonpecuniary objectives may still solicit clients. 67 C. The Central Hudson Test and Analyzing Attorney Advertising Restrictions As indicated, many state bar associations, acting upon the Court's limitation of its opinion in Bates, amended their codes in order to regulate aspects of attorney advertising. 68 Additionally, the American Bar Association amended the Model Code of Professional Responsibility in order to prohibit the advertising through the use of third parties through coercive influence such as compensation. 69 The United States Supreme Court, however, held this second generation of restrictions to be unconstitutional in In re R.M. J. 70 In In re R.M.J., the Supreme Court expanded First Amendment protection for attorneys marketing their services" in considering claims regarding the quality of legal services, an issue reserved in Bates. 72 The state bar rules at 62. Id. 63. Id. at Id. 65. Id. at 458 (quoting Bates, 433 U.S. at 364). 66. Ohralik, 436 U.S. at In re Primus, 436 U.S. at See Snyder, supra note 39; Maute, supra note See MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 2-8. DR 2-101, and DR (1969) U.S. 191 (1982). 71. Id. at Id. at 201.

9 1999/00] ATTORNEY ADVERTISING issue in R.M.J. attempted to strike a balance between unlimited attorney advertising and an absolute ban on advertising. The rules required an attorney to include a disclaimer regarding certification of expertise and prohibited attorneys from listing the areas of one's practice in language or terms other than those provided by the rule, listing the courts and states to which an attorney had been admitted to practice, and mailing announcement cards to persons other than "lawyers, clients, former clients, personal friends, and relatives. 7 3 The attorney in R.M.J. was reprimanded by the state bar for mailing announcement cards and advertising the opening of his office. 7 4 The advertisements included information that was not expressly permitted by the rule. 75 For instance, the attorney included a statement that he was "Admitted to Practice Before THE UNITED STATES SUPREME COURT." 76 In addition, the attorney listed areas of practice that "deviated from the language" of the rule. 77 The Supreme Court of Missouri found the attorney guilty of misconduct, rejected his constitutional arguments, and issued a private reprimand. 78 However, the United States Supreme Court, relying on its decision in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 79 unanimously found in favor of the attorney by holding that the state restrictions placed on him could not be sustained under the First and Fourteenth Amendments. 80 The Court clarified its holding by stating that "the States retain the authority to regulate advertising that is inherently misleading or that has proved to be misleading in practice.,81 The R.M.J. Court ruled that the attorney's advertising did not contain misleading or inherently misleading speech, nor was it deceptive in practice. 82 R.M.J. was the first attorney advertising case analyzed under the Central Hudson test, which has become the standard test applied in order to measure restrictions on commercial speech. 83 In Central Hudson, the Court set forth a 73. Id. at Id. at In re R.M.J., 455 U.S. at Id. at Id. Specifically, the attorney advertised his practice as "personal injury" and "real estate" instead of "tort law" and "property law," and he advertised that he practiced in areas not listed in the rule, including "contract," "zoning & land use," "communication," and "pension & profit sharing plans." Id. 78. Id. at U.S. 557 (1980). 80. In re R.M.J., 455 U.S. at Id. 82. Id. at Central Hudson, 447 U.S. at 566.

10 GONZAGA LAW REVIEW [Vol. 35:1 four-part test for evaluating state restrictions on commercial speech. 84 The Court stated that to analyze a restriction on commercial speech: At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. 85 Central Hudson involved a challenge of a New York Public Service Commission regulation that completely banned promotional advertising by an electric company. 86 The Commission neither claimed that the expression at issue was inaccurate, nor argued that it was related to unlawful activity. 87 Therefore, applying the aforementioned test, the Court first examined the interest of the state and found that the state's interests in energy conservation and fair rates were substantial. 88 Next, the Court held that the regulation advanced the state's interest in promoting the conservation of energy. 89 Nevertheless, the Court concluded that the regulation was in violation of the First Amendment because it was more extensive than necessary to advance the state's interests. 90 D. Targeted Solicitation and the Expansion of First Amendment Rights for Attorneys At this point in the history of attorney advertising, it is significant to note that, of the attorney advertising regulations the Court considered, only the regulation in Ohralik survived constitutional scrutiny. 9 ' Clearly, the Court was moving toward greater First Amendment protection for attorney advertising. In 1985, the Supreme Court decided Zauderer v. Office of Disciplinary Counsel. 92 Zauderer presented new issues regarding the regulation of attorney 84. Id. at Id. at Id. at Id. at Central Hudson, 447 U.S. at Id. at Id. at Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978) (upholding a prophylactic ban on in-person solicitation) U.S. 626 (1985).

11 1999/001 ATTORNEY ADVERTISING advertising. 93 The questions before the Court were "whether a State may discipline an attorney for soliciting business by running newspaper advertisements containing nondeceptive illustrations and legal advice, and whether a State may seek to prevent potential deception of the public by requiring attorneys to disclose in their advertising certain information regarding fee arrangements. 94 In Zauderer, an attorney placed an advertisement in thirty-six Ohio newspapers soliciting business from women who had suffered injuries by using "a contraceptive device known as the Dalkon Shield Intrauterine Device." 95 The advertisement contained an accurate drawing of the Dalkon Shield accompanied by the question, "DID YOU USE THIS IUD? ' '9 6 In addition, the attorney's advertisement contained information about the alleged effects of using the device, the fact that the attorney's firm was currently handling these IUD cases, and that such cases were handled on a contingency fee basis. 97 The Court applied the Central Hudson test 98 and found this kind of targeted, newspaper advertisement to be protected under the First Amendment. 99 First, the Court found that the advertisement was not misleading. 100 Next, the Court determined that the State did not have a substantial government interest to prohibit targeted newspaper advertising. 0 1 Finally, the Court concluded by noting that its recent commercial speech cases were "grounded in the faith that the free flow of commercial information is valuable enough to justify" placing the burden on the state to distinguish false, misleading, and harmful advertising from truthful, non-deceptive, and harmless advertising. 0 2 Accordingly, the Zauderer Court held that targeted, newspaper attorney advertising was afforded protection under the First Amendment and a 93. Id. at Id. 95. Id. at Id. 97. Zauderer, 471 U.S. at Id. at 638. The Court stated that, "[clommercial speech that is not false or deceptive and does not concern unlawful activities... may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest." Id. 99. Id, at Id. at 639. The Court stated that "[t]he advertisement's information and advice concerning the Dalkon Shield were... neither false nor deceptive.. " Zauderer, 471 U.S. at Zauderer, 471 U.S. at The Court held that the interests in Ohralik, protecting against the abuses of in-person solicitation, were not present in print advertising. Id. The Court stated that "print advertising generally- poses much less risk of overreaching or undue influence." Id. at Id. at 646.

12 GONZAGA LAW REVIEW [Vol. 35:1 state could not discipline an attorney for soliciting clients with printed advertising that is truthful, non-deceptive, and harmless In Shapero v. Kentucky Bar Association, the Court considered the constitutionality of restrictions on yet another form of attorney advertising, direct-mail solicitation.'0 4 In 1985, a Kentucky lawyer proposed to send targeted letters, containing no false or misleading information, to people whose homes were being foreclosed.1 5 The Kentucky Attorneys Advertising Commission declined to approve the attorney's letters on the ground they were in violation of a Kentucky Supreme Court Rule The Kentucky Supreme Court ultimately reviewed the matter and found the letters to be in violation of Rule 7.3 of the American Bar Association's Model Rules of Professional Conduct. 107 The United States Supreme Court reversed, holding that the mailing of truthful, non-deceptive letters to potential clients whom the lawyer knows to have specific legal problems, constituted commercial speech that is protected by the First Amendment The Court applied the Central Hudson test to the Kentucky rule finding that the State had not established a substantial interest 103. Id. at U.S. 466 (1988) Id. at 469. The letters provided: It has come to my attention that your home is being foreclosed on. If this is true, you may be about to lose your home. Federal law may allow you to keep your home by ORDERING your creditor [sic] to STOP and give you more time to pay them. You may call my office anytime from 8:30 a.m. to 5:00 p.m. for FREE information on how you can keep your home. Call NOW, don't wait. It may surprise you what I may be able to do for you. Just call and tell me that you got this letter. Remember it is FREE, there is NO charge for calling. Id Shapero, 486 U.S. at This rule prohibits the mailing of advertisements "precipitated by a specific event or occurrence involving or relating to the addressee or addressees as distinct from the general public." Id Shapero, 486 U.S. at The rule provides in its entirely: A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, by mail, inperson or otherwise, when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain. The term 'solicit' includes contact in person, by telephone or telegraph. by letter or other writing, or by other communication directed to a specific recipient, but does not include letters addressed or advertising circulars distributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful. Id. (quoting MODEL RULES OF PROFESSIONAL CONDUCT Rule 7.3 (1984)) Shapero, 486 U.S. at471.

13 1999/00] ATTORNEY ADVERTISING sufficient to justify an absolute ban on targeted solicitation letters.' 09 The Court distinguished targeted letters from in-person solicitation by stating, "[u]nhike the potential client with a badgering advocate breathing down his neck, the recipient of a letter... can 'effectively avoid further bombardment of [his] sensibilities simply by averting [his] eyes.""' 0 Thus, individuals are much less likely to be unduly burdened or pressured by a letter than by the presence of an attorney, for recipients of letters can simply put the letter aside, ignore it, or throw it away.i The Court noted that a personalized letter increased the risk of deception, since it could lead the recipient to overestimate the attorney's familiarity with their problem or "suggest that the recipient's legal problem is more dire than it [actually] is."" 2 However, the Court further held that merely because targeted, direct-mail solicitation presents an opportunity for abuse or mistake, it "does not justify a [complete] ban on that mode of protected commercial speech."" 1 3 The Court pointed out that the State could regulate such abuses and could even prevent them by requiring attorneys to seek prior approval of solicitation letters by a state agency."1 In Shapero, the Court found that the direct-mail solicitation at issue was not false, deceptive, or misleading, thus, the letters were protected under the First Amendment." 5 First Amendment protection was further expanded in Peel v. Attorney Registration & Disciplinary Commission of Illinois. 1 6 In Peel, the Court extended First Amendment protection to an attorney who indicated on his letterhead that he was a "Certified Civil Trial Specialist" by the National Board of Trial Advocacy." 7 The National Board of Trial Advocacy ("NBTA") is a national organization of trial lawyers that require a rigorous and exacting set of standards and examinations prior to granting trial specialist certification to attorneys." 8 The Court found that the NBTA certified letterhead of the attorney was neither deceptive, nor inherently misleading, because one could readily observe the distinction between "licensed" and "certified." " 9 Moreover, 109. Id. at 476. The state argued that targeted solicitation by mail was merely "Ohralik in writing," and it had a substantial interest in prohibiting such solicitation because it subjected the public to undue influence and pressure. Id. at Id. at 475 (quoting Ohralik, 436 U.S. at 465 n.25) Id. at Shapero, 486 U.S. at Id Id Id. at U.S. 91 (1990) Id Id. at Id. at 103.

14 GONZAGA LAW REVIEW [Vol. 35:1 the Court held that the letterhead was not potentially deceptive, because it was no more misleading than the statement "Admitted to Practice Before THE UNITED STATES SUPREME COURT" included with the advertisement in R.M.J Therefore, the Court reversed the public censure of the attorney, concluding that such discipline violated the First Amendment. 12' Since the Court first extended constitutional protection to commercial speech and attorney advertising in Virginia State Board of Pharmacy and Bates, the Supreme Court has gradually and consistently expanded the scope of First Amendment protection for attorneys who want to market their services. However, seven years after its decision in Shapero, the Court held in Florida Bar v. Went For It, Inc., that a statute prohibiting targeted direct-mail solicitation for thirty days from the occurrence of certain personal injuries was constitutional. 122 That statute was more narrowly tailored than the total ban considered in Shapero. 123 Moreover, the Court recognized the State's substantial interest in the regulation of targeted direct-mail solicitation of accident victims In Went For It, the Supreme Court, for the first time since its decision in Bates, upheld a state restriction on attorney advertising. 25 The Court's decision in Went For It marked a clear shift in First Amendment jurisprudence. The next section of this Article looks at the Court's opinion in Went For It, followed by a discussion on the impact the opinion will have on the legal profession's ability to effectively market its services in the future. Im. FLORIDA BAR V. WENT FOR IT, INC. A. Background "In 1989, the Florida Bar ("Bar") completed a [two]-year study of the effects of lawyer advertising on public opinion[s] [regarding lawyers and the legal system].' 1 6 As a result of this study, the Bar determined that several changes to its advertising rules were needed The Bar petitioned the Florida Supreme Court, and in late 1990, the Florida Supreme Court adopted the Bar's proposals with some modifications. 28 Two of these amendments, Rule Id. at (quoting In re R.M.J., 455 U.S. at 197) Peel, 496 U.S. at U.S. 618 (1995) Id. at Id. at Id. at Id. at Went For It, Inc., 515 U.S. at Id.

15 1999/00] ATTORNEY ADVERTISING 7.4(b)(1) and Rule 4-7.8(a), were at issue in Went For It These rules created a thirty-day period after an accident where lawyers could not, "directly or indirectly, single out accident victims or their relatives in order to solicit their business." 3 "In March 1992, G. Stewart McHenry and his... lawyer referral service, Went For It, Inc.," brought suit challenging the constitutionality of the rules McHenry's business consisted of contacting accident victims or their relatives and referring these potential clients to participating Florida lawyers.' 32 McHenry argued that he had routinely sent targeted solicitations to accident victims or their relatives within thirty days after accidents, and "he wished to continue doing so.' ' 133 The district court found the rules unconstitutional as a matter of law and entered summary judgment for the plaintiffs The Court of Appeals for the Eleventh Circuit affirmed on similar grounds. 135 The Eleventh Circuit agreed with the Bar and expressed its disapproval of the advertising at issue. 13 However, the court believed it was compelled by precedent to affirm the ruling of the district court The Florida Bar appealed to the United States Supreme Court and the case was granted review Id. Rule 4-7.4(b)(1) provides that: A lawyer shall not send, or knowingly permit to be sent,...a written communication to a prospective client for the purpose of obtaining professional employment if: (A) the written communication concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the mailing of the communication. Went For It, Inc., 515 U.S. at 620. Rule 4-7.8(a) states that: A lawyer shall not accept referrals from a lawyer referral service unless the service: (1) engages in no communication with the public and in no direct contact with prospective clients in a manner that would violate the Rules of Professional Conduct if the communication or contact were made by a lawyer. Went For It, Inc., 515 U.S. at Id. at Id. at Id Id WentForlt, Inc., 515 U.S. at Id. at Id McHenry v. Florida Bar, 21 F.3d 1038, (1lth Cir. 1994), rev'd515 U.S. 618 (1995) Florida Bar v. Went For It, Inc., 512 U.S (1994) (granting certiorari).

16 GONZAGA LAW REVIEW [Vol. 35:1 B. The Opinion of the Court The United States Supreme Court, in a 5-4 decision delivered by Justice O'Connor, reversed the Eleventh Circuit's finding that the thirty-day waiting period did not violate the First Amendment In reaching its decision, the Court evaluated the Florida Bar rules by applying the Central Hudson test. 140 Applying the Central Hudson test, the Court first examined the interests that the Florida Bar advanced in support of its rules. 14' The Bar asserted the interest of protecting the privacy and tranquility of personal injury victims and their loved ones, as well as protecting "the reputation of the legal profession in the eyes of Floridians."' 142 The Court accepted the Bar's interests as substantial, and acknowledged that states may regulate the practice of professions within their boundaries to protect such interests as safety and public health. 143 Turning to the second prong of the Central Hudson test, the Court stated the government must establish that the restriction on commercial speech directly and materially advances its substantial interest.'" To meet this requirement, "[t]he Bar submitted a 106-page summary of its [two]-year study of lawyer advertising and solicitation."' 145 The summary contained data supporting the Bar's contentions that the Florida public views direct-mail solicitation as "an 14 6 intrusion on privacy that reflects poorly upon the [legal] profession.' Additionally, the Florida Bar submitted newspaper articles from Florida cities with titles such as "Scavenger Lawyers" and "Solicitors Out of Bounds" in support of the negative view Florida citizens had of lawyers. 14' Based on this evidence, the Court found that the Bar had satisfied its burden of proving its substantial interest was advanced by the restriction of commercial speech.' 48 The Court distinguished this situation from its holding in Shapero. 149 It held that, in Shapero, the advanced governmental interest had been an avoidance of the overreaching involved in targeted solicitation. 50 ' Furthermore, "Shapero dealt with a broad ban on all direct-mail solicitations, whatever the 139. Went For it, Inc., 515 U.S. at Id. at Id. at Id. at Went Forlt, Inc., 515 U.S. at id. at Id. at Id Id. at Went For it, Inc., 515 U.S. at Id. at Id.

17 1999/00] ATTORNEY ADVERTISING time frame and whoever the recipient."'' Finally, the Court declared that "the State in Shapero [failed to offer any] evidence attempting to demonstrate any actual harm caused by targeted direct mail [solicitation]."' 52 In contrast, the asserted governmental interest in Went For It, was to protect the privacy rights of the public and to protect the image of Florida lawyers.1 53 In addition, the Florida rules were for a limited duration and for the protection of a select number of potential recipients. 54 In contrast to Shapero, the Bar in Went For It submitted a great deal of evidence demonstrating the harm caused by this form of solicitation. 155 The Court further held that, "[w]hile it is... true that many people find the image of [a] lawyer[ ] sifting through accident... reports in pursuit of prospective clients... invasive, [the Florida rules] target[ ] a different kind of intrusion." 156 The Court stated: The intrusion targeted by the Bar's regulation stems not from the fact that a lawyer has learned about an accident or disaster.., but from the lawyer's confrontation of victims or relatives with such information, while wounds are still open, in order to solicit their business. In this respect, an untargeted letter mailed to society at large is different in kind from a targeted solicitation; the untargeted letter involves no willful or knowing affront to or invasion of the tranquility of bereaved or injured individuals and simply does not cause the same kind of reputational harm to the profession unearthed by the [Florida] Bar's study Accordingly, the Court found Shapero "to be of little utility in assessing th[e] [Florida] ban on targeted solicitation of victims in the immediate aftermath of accidents."' 58 The Court also distinguished Bolger v. Youngs Drug Products Corp.,' 5 9 which rejected the government's "effort to ban potentially 'offensive' and 'intrusive' direct-mail advertisements for contraceptives."'" TheCourt found that, unlike Bolger, where the recipient of the unwanted mail could merely discard the material, the harm targeted by the Florida Bar could not be 151. Id Id Went For It, Inc., 515 U.S. at Id. at Id. at Id. at Id WentForlt, Inc., 515 U.S. at U.S. 60 (1983) WentForlt, Inc., 515 U.S. at 630.

18 GONZAGA LAW REVIEW [Vol. 35:1 "eliminated by a brief journey 16 1 to the trash can.' The Florida Bar was not merely concerned with the offense to its citizens, but with the detrimental effects that such an offense has on the reputation of the legal profession as a whole The Went For It Court determined that receipt of an offensive letter from an attorney days after an accident, in contrast to Bolger, has a damaging effect on the reputation of the profession that cannot be remedied by simply throwing the letter away Finally, the Court turned to the last step of the Central Hudson test and examined the relationship between the Florida Bar's interests and the means chosen to serve those interests. " The Court found that the thirty-day ban was reasonably tailored to serve the Bar's substantial interests The Court further noted that there were "ample alternative channels [for accident victims to receive] information about the availability of legal representation during the 30- day period following [their] accident[ ]...,166 Accordingly, the Court held that the Florida Bar rules satisfied the final step of the Central Hudson test The Court determined that the Bar's two-year study indicated that the regulation advanced the government's interest, and the targets of the regulation were reasonable and narrowly tailored in scope and in duration Therefore, the Court held that the First Amendment is not violated by reasonable restrictions placed on targeted direct-mail solicitation by attorneys Writing for the dissent, Justice Kennedyjoined by Justices Stevens, Souter, and Ginsburg, argued that the Florida Bar's rules failed the Central Hudson test because the interests asserted were not substantial. 170 It held that the majority departed from the controlling effect of precedent by finding a substantial government interest in protecting citizens' privacy rights and the reputation of the legal profession. 171 The dissent contended that Shapero, which deemed targeted attorney advertising to be appropriate, prohibited privacy from being viewed as a substantial government interest.1 72 The dissent reasoned that 161. Id. at Id Id Id. at WentForlt, Inc., 515 U.S. at Id. at Id Id Id Went For It, Inc., 515 U.S. at (Kennedy, J., dissenting) Id. at Id. at

19 1999/00] ATTORNEY ADVERTISING the suppression of speech, under the First Amendment and precedent case law, is not justified on the ground that it may offend the listener The dissent also disagreed with the majority's reliance on the Florida Bar's two-year study to satisfy the second prong of the Central Hudson test It argued that the study consisted of "no actual surveys, few indications of sample size or selection procedures, [and] no explanations of [its] methodology [or framework].' The dissent characterized the study as "incompetent," "selfserving," and "unsupported."' 176 Thus, the dissent asserted that it is unclear whether the regulation advances the interests of the government Finally, the dissent contended that the regulation does not satisfy the final step of the Central Hudson test because it is not narrowly tailored. 78 The dissent held that the rules suppress more speech than necessary because they apply "with respect to all accidental injuries, whatever their gravity."' 79 In addition, the dissent argued that the restriction deprives accident victims of information critical to their right to make a claim for their injuries.1 80 The dissent concluded by stating, "under the First Amendment the public, not the State, has the right and the power to decide what ideas and information are deserving of their adherence.""' C. The Impact on the Future of Attorney Advertising In Went For It, the Supreme Court, for the first time in seventeen years, upheld a state restriction on attorney advertising. In order to avoid offending the public and to protect the reputation of the legal profession, the Court reduced First Amendment protection of attorney advertising. This marked a clear departure from the Court's previous practice of protecting most forms of attorney commercial speech. The Court's decision in Went For It sent a message to state bar organizations that reasonable regulation of attorney advertising would now be permitted. Consequently, the Court hindered the ability of attorneys to effectively market their services and the public's ability to receive information pertaining to legal services and prices. As a result, state 173. Id. at Id. at Went For It, Inc., 515 U.S. at 640 (Kennedy, J., dissenting) Id. at Id Id. at Id. at Went For It, Inc., 515 U.S. at 643 (Kennedy, J., dissenting) Id. at 645.

20 GONZAGA LAW REVIEW [Vol. 35:1 bars are currently able to justify restriction on attorney advertising simply by displaying the need for regulation based upon public opinion. The Court's decision in Went For It marked a shift in First Amendment jurisprudence. Since that decision was handed down, several states have passed or are considering passing legislation similar to Florida's anti-solicitation rule. In a notable 1997 survey taken of thirty-five states, "sixteen indicated that further regulations of attorney advertising [would be considered] in light of Went For It.' 182 Nine states indicated that they would seek to adhere to rules similar to Florida's rules,' 83 and five states acknowledged that they were possibly already in the process of proposing such rules. 84 In addition, the "survey also revealed that eight states are considering additional action beyond the [thirty-day] waiting period.., in light of Went For It,"1 85 while seven states indicated "the possibility of further regulation [was] under consideration, but no specific proposals [were pending at that time].' ' 86 Based on these results, it is apparent that the Court has given its approval to increased regulation of attorney advertising marking a change in First Amendment jurisprudence since the Court first acknowledged Constitutional protection for attorney advertising in Bates. IV. CONCLUSION The First Amendment to the United States Constitution provides that "Congress shall make no law... abridging the freedom of speech."' ' 87 Attorney advertising that is false, deceptive, or misleading is generally not protected by 182. Thomas Jon Moore, Comment, Attorney Advertising in the Wake of Florida Bar v. Went For It, Inc.: A Groundbreaking Maintenance of the Status Quo, 101 DICK. L. REV. 451, 475 (1997). Those states indicating considering further regulation are as follows: Alabama, California, Colorado, Florida, Hawaii, Idaho, Indiana, Louisiana, New Hampshire, New Jersey, North Carolina, Oklahoma, Pennsylvania, South Carolina, Tennessee, and Texas. Id. at 475 n Id. at 475. Those states indicating similar rules would be considered are as follows: Alabama, Hawaii, Idaho, Louisiana, New Hampshire, New Jersey, Oklahoma, Pennsylvania, and Tennessee. Id. at 475 n Moore, supra note 182, at 475. Those states indicating the possibility that the proposal of such rules were already under construction are as follows: California, Colorado, Indiana, North Carolina, and South Carolina. Id. at 475 n Id. at 475. Those states indicating additional action beyond the thirty-day waiting period would be considered are as follows: California, Florida, Indiana, Louisiana, New Jersey, Oklahoma, South Carolina, and Texas. Id. at 475 n Moore, supra note 182, at 475. Those states indicating the possibility that the proposal of such rules were already under construction are as follows: California, Florida, Indiana, Louisiana, Oklahoma, South Carolina, and Texas. Id U.S. CONST. amend. 1.

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