Personal-injury attorney to appeal decision upholding solicitation ban

Thursday, September 10, 1998

Atlanta personal-injury attorney Robert Falanga says he will appeal a recent federal appeals court decision that rejected his First Amendment challenge of Georgia Bar Association rules regulating lawyer solicitation.

Falanga and his partner Robert Chalker manage a five-office practice that handles mainly personal-injury cases. The attorneys engage in several business practices designed to increase their client base, including sending solicitation letters to accident victims and dining with doctors who might then refer patients to them.

When officials with the state bar told Falanga they were investigating his practices, he says he finally got tired of the “harassment” and sued in federal court, claiming several Georgia bar rules limiting attorney solicitation violated the First Amendment.

The 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.”

On Aug. 19, a three-judge panel of the 11th U.S. Circuit Court of Appeals ruled in Falanga v. State Bar of Georgia that the rules regulating attorney conduct do not violate First Amendment free-speech rights.

The 11th Circuit relied heavily on the 1978 U.S. Supreme Court decision 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.

“The State — or the Bar acting with state authorization — 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,” the Supreme Court wrote.

However, Falanga asserts that his conduct does not rise to the same level as the conduct in Ohralik. “Mr. Ohralik's activities were light-years removed from our business practices,” he said.

“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.”

Falanga says the 11th Circuit should have relied more on the 1993 Supreme Court decision of Edenfield v. Fane in which the court struck down an in-person accountant solicitation ban.

In rejecting the ban, the high court wrote that the Florida law “threatens societal interests in broad access to complete and accurate commercial information that First Amendment coverage of commercial speech is designed to safeguard.”

The 11th Circuit, however, determined that “plainly this case is closer to Ohralik than Edenfield” and that “although Falanga's and Chalker's conduct may not be as egregious as Ohralik's, they cannot seriously contend that Edenfield saves their case.”

Robert Goldstucker, lead attorney for the Georgia bar, says the 11th Circuit was absolutely correct in relying primarily on Ohralik. “The appeals court correctly saw that Falanga's is more closely governed by the Ohralik decision, which deals with attorney conduct, than the Edenfield decision, which deals with accountants.

“The bottom line is that there is no erosion of the Bill of Rights going on here,” Goldstucker said. “What Falanga wants to do is the bottom-fishing of the legal profession. The intrusive practices that Falanga wants to engage in undermine the civil justice system and create a distrust of plaintiffs' lawyers in general. I myself am a plaintiff's attorney and I don't want this sort of conduct occurring.”

Falanga says that instead of going to hospitals, he would take a group of doctors to a meal and explain his personal-injury practice to them and ask them to mention his name to patients. “The large law firms do this stuff every day by taking bankers and insurance adjusters to lunch.

“There is a double standard with respect to how attorney solicitation is treated differently than solicitation by other professionals,” Falanga said. “If accountants can solicit, why shouldn't attorneys be able to do the same thing? The courts have created a total double standard. Any other profession can do it, but lawyers are placed in a separate category.”

Falanga also says a double standard applies to attorneys and insurance adjusters. “In Florida Bar v. Went-For-It, the U.S. Supreme Court upheld a Florida bar rule prohibiting attorney solicitation letters within 30 days of an accident; however, insurance adjusters could go talk to people one or two days later and get them to waive their legal rights,” he said.

Falanga says he will first seek a review of the decision by a full panel of the 11th Circuit — called in legal terms en banc review. If the court refuses his request for full-panel review or rules against him, he says he “fully intends” to take the case to the U.S. Supreme Court.

“This issue is ripe for the U.S. Supreme Court,” he said.

However, Goldstucker predicts that neither the 11th Circuit nor the Supreme Court will review the unanimous opinion by the three-judge panel. “It is just not going to happen,” he said.