Citation. Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175, 1 A.L.R.4th 1144 (Pa. 1978)
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Brief Fact Summary.
The Plaintiff, Adler, Barish, Daniels, Levin and Creskoff (Plaintiff) is a law firm. The Defendants, Epstein and others (Defendants) are former salaried associates. The Plaintiffs brought an action for injunctive relief to keep the Defendants from soliciting the Plaintiff’s clients to have the Defendants handle their current legal projects.
Synopsis of Rule of Law.
Soliciting a law firm’s clients to break their contracts with the firm and hire the solicitor instead is commercial speech not protected by the First Amendment of the United States Constitution (Constitution). The injured party may find relief in tort.
The Plaintiff is a law firm. The Defendants were salaried associates of the Plaintiff. The Defendants decided to leave the Plaintiff’s employ and start their own firm. The Defendants met personally with clients whose cases they worked on while in the Plaintiff’s employ. The Defendants told the clients they were leaving the firm and invited them to break their contracts with the Plaintiff and have the Defendants be their attorneys instead. The Defendants also sent a mass mailer out to all the Plaintiff’s current clients that the Defendants had worked for. The mailer included a form to fill out that would break their contract with the Plaintiff and a retention agreement for Defendants’ new firm. The Defendants also took out a $150,000 line of credit at a bank. As security, they listed the value of the work they were doing for the clients as attorneys in Plaintiff’s employ at $500,000. The Plaintiff sued for an injunction, preventing the Defendants from contacting the clients and
soliciting them to hire the Defendants’ new firm. The trial court granted the injunction. The Court of Appeals reversed. The Plaintiff appealed to the Supreme Court of Pennsylvania.
May the Plaintiff find relief in tort?
* Are the Defendants activities commercial speech protected by the First Amendment of the Constitution?
Yes, on the first count. No, on the second.
* The Plaintiff’s activities are not protected by the First Amendment of the Constitution. While the First Amendment of the Constitution does protect commercial speech, that protection does not extend to this kind of targeted campaign directed at the Plaintiff’s clients who had active legal matters pending. The First Amendment of the Constitution protects a lawyer’s right to advertise truthfully to the general public. The Defendants may advertise to the public at large, which would include Plaintiff’s clients, that they are available to provide legal services. As it stands, the Code of Professional Responsibility forbids lawyers from soliciting business from non-lawyers who have not sought out legal services and other kinds of commercial speech of a sensitive nature may be regulated without offending the First Amendment of the Constitution. Furthermore, the in person solicitations that the Defendants engaged in, could put the clients on the spot and pressure them to choose the Defenda
nts over the Plaintiff, thus, hindering their ability to make an intelligent, informed decision.
* Since the Court determined that the Defendant’s activities are not protected by the First Amendment of the Constitution, the Court turned to whether the Plaintiff is entitled to relief. The common law has recognized, since Lumley v. Gye, the tort of intentional, unprivileged interference with contractual relations. It is clear that the Defendants sought to interfere with the contractual relationship between the Plaintiff and its clients. In light of what society continues proper, the court found that the Defendants action offended the “rules of the game”. The Plaintiff trusted the Defendants to work as its agent to serve these clients. In turn, the Defendants betrayed the Plaintiff’s trust by trying to take the client’s business away from the Plaintiff
The Defendants’ activities did not put undue pressure on the clients to choose their services over the Plaintiff. Rather, it gave the clients the option to have the Defendants represent them. Rather, their solicitation gave the clients the chance to make an informed, intelligent decision that the First Amendment of the Constitution is trying to protect.
The court’s decision, as opposed to exploring the relationship between the tort of intentional interference with contractual relations and excepted business practice in a competitive market economy, explores the relationship between the tort and the First Amendment constitutional protection of commercial speech.