High court refuses to hear challenge to Georgia ban on in-person lawyer solicitation

Wednesday, May 5, 1999

The U.S. Supreme Court recently refused to hear a challenge to a Georgia rule banning in-person solicitation by lawyers.

Two personal injury attorneys from Atlanta, Robert Falanga and Robert Chalker, contended the ban on in-person solicitation violated their First Amendment free-speech rights.

Falanga and Chalker sued the state bar association after being told by bar officials that their business practices were being investigated. The attorneys, who manage a five-office practice, employ several methods to increase their client base, including sending solicitation letters to accident victims and dining with doctors who might refer patients to them.

The state bar rule governing face-to-face solicitation 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.”

Another rule prohibits attorneys from compensating others “to recommend or secure his employment by a client.”

A federal judge determined in 1997 that the rule violated the First Amendment. However, a three-judge panel of the 11th U.S. Circuit Court of Appeals ruled last August in Falanga v. State Bar of Georgia that the rules limiting attorney in-person solicitation did not violate the First Amendment.

The appeals court relied primarily on the 1978 U.S. Supreme Court case Ohralik v. Ohio State Bar Association 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.

However, Falanga and Chalker argued that their case should not be judged under the Ohralik standard, saying that case had an unusual set of facts. Albert Ohralik engaged in far more intrusive conduct, going so far as to solicit an 18-year-old woman while she was laid up in traction at a hospital. “Mr. Ohralik's activities were light-years removed from our business practices,” Falanga said in an earlier interview.

“Ohralik actually went to hospitals and solicited people while they were lying in traction,” Falanga said. “Our firm did nothing of the sort. We basically wined and dined doctors.”

After the 11th Circuit refused to grant a full-panel review, Falanga appealed to the U.S. Supreme Court. Last week the Supreme Court refused to hear the appeal.

Robert Goldstucker, lead counsel for the bar association, said the Supreme Court's decision not to take the case was a “no-brainer.”

“There was nothing unique about the case brought by Falanga and Chalker,” he said. “The rules do not stomp on the First Amendment, rather they barely nick its toe if at all. Attorneys still have numerous ways to communicate with potential clients and to advertise — on billboards, in phone books, by sending letters. The rules in question merely limit one method of advertising that is fraught with the danger of attorney overreaching.”

However, Andrew Kirshner, an attorney for Falanga and Chalker, said the Supreme Court missed a chance to set the record straight on just how much protection there is for attorney speech. “I think the U.S. Supreme Court did not perceive the real problem from this case — that there is no real standard that governs how attorneys can ethically solicit clients,” he said. “We are left with a case [Ohralik] that says a lawyer cannot solicit business from a minor in a hospital bed. The court missed an opportunity to set the standard.”