Court upholds Georgia rule prohibiting in-person lawyer solicitation

Friday, August 28, 1998

A Georgia rule that prohibits attorneys from in-person solicitation of prospective clients does not violate the First Amendment, a federal appeals court ruled recently.


Two personal-injury attorneys from Atlanta, Robert Falanga and Robert Chalker, sued the state bar association, contending the ban on in-person solicitation and some other attorney conduct rules violated their First Amendment free-speech rights.


Falanga and Chalker, who work together, contact prospective clients in several ways, including in-person, telephone and direct-mail solicitations.


The two attorneys filed the lawsuit shortly after the Georgia State Bar Association began investigating them for the alleged violation of several rules, including the ban on face-to-face solicitation.


The rule provides: “A lawyer shall not solicit professional employment as a private practitioner for himself, his partner or associate, through direct personal contact with a non-lawyer who has not sought his advice regarding employment of a lawyer.”


A federal district court determined that the rule violated the First Amendment. However, the 11th U.S. Circuit Court of Appeals ruled last week in Falanga v. State Bar of Georgia that the law was constitutional and did not violate the attorneys' commercial free-speech rights.


The appeals court principally relied on the 1978 U.S. Supreme Court case Ohralik v. Ohio State Bar Ass'n to reach its conclusion. In Ohralik, the high court ruled that a similar Ohio rule banning in-person attorney solicitation did not violate the First Amendment.


The Supreme Court wrote in Ohralik that “in-person solicitation may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection” and that Ohio “constitutionally may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent.”


Falanga and Chalker argued that the Ohralik case was distinguishable on the facts, because Ohralik engaged in far more intrusive contact, including soliciting an individual laid up in traction in a hospital bed.


Instead, contended Falanga and Chalker, the more recent U.S. Supreme Court decision in Edenfeld v. Fane (1993) should govern their case. In Edenfeld, the high court struck down a Florida law banning in-person solicitation by certified public accountants.


The court wrote in its 1993 opinion that: “Ohralik does not stand for the proposition that blanket bans on personal solicitation by all types of professionals are constitutional in all circumstances.” The court in Edenfeld noted that later cases explained that the Ohralik decision applied only to the unique circumstances of in-person attorney solicitation. The 11th Circuit determined that “plainly, this case is closer to Ohralik than Edenfeld” and that “although Falanga's and Chalker's conduct may not be as egregious as Ohralik's, they cannot seriously contend that Edenfeld saves their case.”


Noting that the two attorneys' conduct “fall[s] squarely within this category of ambulance chasing,” the court said that the state bar had provided sufficient “anecdotal evidence” that the ban would further the state's interest in protecting privacy and the reputation of the bar. The court also relied on an independent study entitled “Consumer Reactions to Legal Services Advertising in the State of Georgia” that focused on the effects of television advertising and the public's opinion of attorneys.


The 11th Circuit also noted that only four jurisdictions — the District of Columbia, Maine, Montana and North Dakota — “liberally permit in-person solicitation, but not without limitation.”


Ralph Goldberg, an attorney for Falanga and Chalker, said that the “11th Circuit has done serious damage to the First Amendment.”


Richard Kaplar, editor of The Commercial Speech Digest, said: “Apparently, the 11th Circuit is willing to accept the flimsiest of evidence — anecdotal stories and a report about TV advertising — to ban a form of communication it finds distasteful.


“This decision shows that courts still tend to view in-person lawyer solicitation in the same category as obscenity — as unredeemed speech not worthy of First Amendment protection,” Kaplar said. “In-person lawyer solicitation is the bottom-feeder in the commercial-speech pond.”


However, Bill Smith, general counsel for the Georgia State Bar, applauded the decision, saying: “If you're laid up in a hospital bed, you have a right not to be intruded on by a lawyer looking for business.”


Robert L. Goldstucker, lead counsel for the bar association in the case, said the decision was legally correct. “Our case fit the Ohralik case like a glove. The 11th Circuit's decision was appropriate in view of Ohralik and a number of other U.S. Supreme Court cases and other federal cases since Ohralik,” he said.


— The Associated Press contributed to this report.