High court ruling allowing limits on attorney speech turns 15

Monday, June 21, 2010

Fifteen years ago today, the U.S. Supreme Court ruled that the Florida Bar could prohibit lawyers from sending solicitation letters to accident victims or their family members within 30 days of the incident. The Court ruled that the bar had substantial interests in protecting the privacy rights of accident victims and the reputations of attorneys.

The majority’s opinion in 1995 was unexpected in light of previous high court rulings on attorney speech.

“After almost two decades of the high court striking down every attorney-ad regulation that it reviewed, the conventional wisdom was that state attorney-regulatory agencies could not regulate any attorney ads that weren't deceptive or potentially misleading,” said Barry Richard, who argued Florida Bar v. Went For It before the Supreme Court for the Florida Bar.

The bar had passed the rule after conducting a two-year study on the impact of lawyer advertising on the public’s perception of lawyer ethics. The study included anecdotal evidence of lawyers’ sending solicitation communications to clients only days after accidents. It showed that many people abhorred such advertising.

A lawyer-referral service known as Went For It, Inc. and its attorney owner challenged the rule on First Amendment grounds. They argued that the rule infringed on the First Amendment rights of attorneys, noting that the U.S. Supreme Court had protected truthful attorney ads since 1977. A federal district court and federal appeals court rejected the Florida rule, accepting these First Amendment arguments.

However, a sharply divided Supreme Court reversed the lower courts and narrowly upheld the 30-day rule in a 5-4 vote. The majority reasoned that the public perceived many attorney-solicitation letters as an invasion of privacy that reflected poorly on the legal profession. They cited citizen letters, including one that read: “I consider the unsolicited contact from you after my child’s accident to be of the rankest form of ambulance chasing and in incredibly poor taste.”

Justice Sandra Day O’Connor seized upon the damaging effect of these letters, writing: “The purpose of the 30-day targeted direct-mail ban is to forestall the outrage and irritation with the state-licensed legal profession that the practice of direct solicitation only days after accidents has engendered.” She also emphasized that the 30-day rule did not ban solicitation letters permanently but merely placed a time limitation on them.

In dissent, Justice Anthony Kennedy questioned the efficacy of the Florida Bar’s study on lawyer advertising, calling it “noteworthy for its incompetence.” He also questioned how it was fair to limit attorney letters for 30 days — the period when many people may most need the advice of a lawyer. Accident victims are often “persons who most need legal advice, for they are the victims who, because they lack education, linguistic ability, or familiarity with the legal system, are unable to seek out legal services.”

“The Went For It decision established that there are other grounds for reasonable regulation” besides deception, Richard said. “The decision has put a stop to some of the most egregiously inappropriate forms of advertising.”

The decision was important as well because it led other states to pass similar waiting periods on solicitation letters, said Peter A. Joy, a professor of legal ethics at Washington University in St. Louis.

The Went For It decision is not without its critics. “There were some flaws with the Court’s decision in Went For It, including the Court’s reliance on anecdotal evidence and the use of little to any statistical evidence,” Joy said. “The Court would not use such thin evidence in many other contexts.”

Joy also questions whether, 15 years after Went For It, the legal profession’s image has improved. “I don’t think anyone has explained whether the Went For It decision has had a positive impact on the public’s impression of lawyers.

“I think if you did another survey in Florida or elsewhere, you would find similar attitudes toward lawyers. Many people draw their impression of lawyers from whatever is most recently in the national news regarding lawyers and the fact that it is very hard for many people to access legal services and find a lawyer.”

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