Restricting attorney solicitation: protecting privacy or squelching free speech?

Wednesday, November 4, 1998

The North Carolina State Bar's recent decision to reject a proposal limiting attorney solicitation letters shows that state bar officials must delicately balance interests in the public's privacy and the reputation of lawyers against First Amendment free-speech rights.

Federal courts across the country have confronted the question of whether bar officials should be allowed to place restrictions on when attorneys can send out solicitation letters targeting accident victims.

The seminal case on this issue reached the U.S. Supreme Court several years ago. In Florida Bar v. Went-For-It, the high court upheld, by a vote of 5-4, a Florida Bar rule prohibiting attorneys from sending solicitation letters to accident victims or their family members within 30 days of an accident or injury.

In her opinion for the majority, Justice Sandra Day O'Connor wrote: “The Bar has a substantial interest both in protecting injured Floridians from invasive conduct by lawyers and in preventing the erosion of confidence in the profession that such repeated invasions have engendered.”

Barry Richard, counsel for the Florida Bar who successfully argued the Went-For-It case before the Supreme Court, said the U.S. Supreme Court properly recognized two substantial interests articulated by the bar — the privacy interests of citizens and the bar's interest in maintaining the reputation of attorneys.

“Sending a solicitation letter within a short period of time after an accident is an egregious invasion of privacy and is considered socially unacceptable,” Richard said.

Richard also said that the Supreme Court recognized that “this kind of conduct creates such an adverse public reaction to the legal profession in general.”

However, others — including four members of the U.S. Supreme Court — have argued that the 30-day ban violated First Amendment free-speech rights.

Justice Anthony Kennedy wrote: “The fact is … direct solicitation may serve vital purposes and promote the administration of justice, and to the extent the bar seeks to protect lawyers' reputations by preventing them from engaging in speech some deem offensive, the State is doing nothing more than manipulating the public's opinion by suppressing speech that informs us how the legal system works. … This, of course, is censorship pure and simple; and censorship is antithetical to the first principle of free expression.”

Kennedy reasoned that it is precisely during the 30 days after an accident that “sound legal advice may be necessary and most urgent.”

Other critics of the opinion have pointed out that insurance adjusters are not burdened with a similar restrictions on contacting accident victims and can persuade them to sign releases waiving their legal rights.

The majority in the Went-For-It case placed heavy emphasis on a 106-page study full of anecdotal evidence showing public dissatisfaction with the legal profession. It was this study, O'Connor said, that showed the substantial state interest in protecting the reputation of the bar.

Kennedy responded: “The Court's opinion reflects a newfound and illegitimate confidence that it, along with the Supreme Court of Florida, knows what is best for the Bar and its clients. Self-assurance has always been the hallmark of a censor.”

Richard Kaplar, editor of The Commercial Speech Digest, also rejects the government's supposed substantial interest in upholding the reputation of the bar. He said: “I've never understood why the government thinks it needs to run a public relations campaign on behalf of the legal profession. I can't think of another industry whose image is of such concern to policymakers.

“Why do we need a special nanny when it comes to lawyers'
commercial speech?” he asked. “Between the 'marketplace of ideas' and the Federal Trade Commission, consumers do just fine.”