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Shapero v. Kentucky Bar Ass

Brief Fact Summary. Petitioner wished to have the right to mail solicitations to “potential clients” drawn from a list of people who had recently had a foreclosure suit filed against them. The Kentucky Bar Association denied this request, and he now appeals.

Synopsis of Rule of Law. A blanket prohibition on lawyer advertising is a direct violation of the First Amendment protections afforded to commercial speech.

Points of Law - Legal Principles in this Case for Law Students.

Commercial speech that is not false or deceptive and does not concern unlawful activities may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest.

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Facts. Petitioner, attorney Shapero, formally requested the approval of Respondent, the Kentucky Bar Association, for a letter that he intended to mail to a select list of people in Kentucky who had recently had their homes foreclosed upon. Respondent conceded that the letter was not false or misleading, but declined to approve his request on the grounds that it violated an existing state ethics rule. Respondent denied this request, and Petitioner now appeals from the Kentucky Supreme Court’s decision in which it determined that ABA Rule 7.3 should replace the previous governing rule.

Issue. Is a blanket prohibition on targeted direct-mail solicitation by lawyers for pecuniary gain acceptable under the First Amendment?

Held. No. States should be able to craft far more narrow bans on certain kinds of potentially-misleading lawyer advertising than the rule being challenged here.

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