Shapero v. Kentucky Bar Association

Brief Fact Summary.

The Kentucky Bar Association (Defendant) promulgated a disciplinary rule prohibiting advertisement mailings for certain legal services.

Synopsis of Rule of Law.

A state may not prohibit the mailing of advertisements to a target audience believed to be in need of certain legal services

Facts.

Shapero (Plaintiff) wanted to circulate an advertisement and he applied to the Attorneys Advertising Commission of the Kentucky State Bar (Defendant) for approval.  The advertisement would be mailed to those persons who, according to public records, were facing imminent foreclosure.  The ad informed the recipients that forestalling foreclosure was possible and recommended that the addressee call Plaintiff’s office for a free consultation regarding their rights in this matter.  Although the Commission (Defendant) did not find the advertisement false or misleading, Defendant found it to conflict with Kentucky Supreme Court Rule 3.135(5)(b)(I), which forbade direct mailing concerning a specific legal matter to persons believed to require assistance in that matter.  The State Bar Ethics Committee, on appeal, agreed that the rule precluded the advertisement Plaintiff wanted to make but urged the Supreme Court of Kentucky to amend the rule.  The Commission (Defendant) modified the rule, but not enough to legitimize Shapero’s (Plaintiff) letter.  Plaintiff brought an action seeking to have the rule declared unconstitutional.  The rule was upheld by the U.S. Court of Appeals, and the Supreme Court granted certeriori

Issue.

May a state may prohibit the mailing of advertisements to a target audience believed to be in need of certain legal services?

Held.

(Brennan, J.)  No.  A state may not prohibit the mailing of advertisements to a target audience believed to be in need of certain legal services.  This Court has previously held that the First Amendment protects advertising from state prohibition when it is not false or misleading.  On the other hand, the Court has sanctioned the proscription of in-person solicitation.  The issues that led this Court to conclude that solicitation could be banned were primarily the inherently coercive nature of in-person solicitation and the lack of tangible evidence, after the fact, of whether the soliciting attorney in fact overreached during the solicitation.  While a direct-mail advertisement is to some extent more coercive than a general non-targed advertisement, the recipient in no way can be placed under the same sort of pressure that he could be in a face-to-face situation.  In addition, unlike in the solicitation situation, the letter itself serves as evidence of whether the advertisement is false or misleading.  Since the policy reasons for prohibiting face-to-face solicitation are not present here, the speech in question is protected under the First Amendment.  Reversed.

Dissent.

(O’Connor, J.)  The decision today is consistent with the earlier Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985), but that case was decided upon erroneous grounds.  That case improperly applied the usual test that commercial speech is constitutionally protected if it concerns lawful activity and is neither false nor misleading.  Regarding advertisements by regulated professions, the states should be free to regulate if the possibility of misleading advertisements exists.  The type of advertisements at issue here, definitely contain such possibility

Discussion.

A general rule of thumb can be learned from the Court’s decisions in Zauderer, Ohralik v. Ohio State Bar, 436 U.S. 447 (1978), and this case.  It would seem that outright solicitation, face-to-face, can be categorically banned.  An advertisement, even one to a target audience and with illustrations, may be permitted.  However, it must not be misleading and must disclose all or most information a would-be client would need to make up his mind about using the lawyer’s services.