Shapero v. Kentucky Bar Association
486 U.S. 466 (1988)
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Rule of Law:
A state may not categorically prohibit lawyers from soliciting legal business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems, as such commercial speech is protected by the First Amendment.
Facts:
- Richard D. Shapero, a lawyer and member of the Kentucky Bar Association, drafted a letter he intended to send to potential clients.
- The letter was targeted at individuals who had foreclosure suits filed against them.
- The letter informed the recipient that federal law might allow them to keep their home by stopping the foreclosure and providing more time for payment.
- It offered free information and urged the recipient to call Shapero's office.
Procedural Posture:
- Shapero applied to the Kentucky Attorneys Advertising Commission for approval of his proposed letter.
- The Commission declined to approve the letter, citing a Kentucky Supreme Court rule that prohibited targeted advertising based on a specific event.
- Shapero sought an advisory opinion from the Kentucky Bar Association's Ethics Committee, which upheld the rule.
- Shapero appealed to the Kentucky Supreme Court for review of the advisory opinion.
- The Kentucky Supreme Court struck down the old rule but replaced it with ABA Model Rule 7.3, which also categorically prohibited the type of targeted direct-mail solicitation Shapero proposed.
- The Kentucky Supreme Court affirmed the Ethics Committee's decision to deny Shapero's request.
- The U.S. Supreme Court granted certiorari to review the decision of the Kentucky Supreme Court.
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Issue:
Does a state rule that categorically prohibits lawyers from soliciting business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face a particular legal problem violate the First and Fourteenth Amendments?
Opinions:
Majority - Justice Brennan
Yes. A state's categorical prohibition on targeted, direct-mail solicitation by lawyers for pecuniary gain violates the First Amendment. Lawyer advertising is constitutionally protected commercial speech that may only be restricted to serve a substantial governmental interest through means that are narrowly tailored to directly advance that interest. This case is distinguishable from Ohralik v. Ohio State Bar Assn., which permitted a ban on in-person solicitation, because written communication does not present the same inherent dangers of overreaching, undue influence, or invasion of privacy. A letter can be easily discarded or ignored, allowing for reflection, unlike face-to-face solicitation which involves coercive pressure for an immediate response. While targeted mail creates opportunities for abuse, a complete ban is overly broad; states can adopt less restrictive means, such as requiring lawyers to file solicitation letters with a state agency for review, to protect the public from false or misleading communications.
Dissenting - Justice O'Connor
No. The state's rule prohibiting targeted, direct-mail advertising by lawyers does not violate the First Amendment. This decision extends the flawed reasoning of Zauderer, which failed to appreciate the important differences between professional services and standardized consumer products. Targeted, personalized letters are potentially more pernicious than general advertising because they can overpower the judgment of vulnerable laypeople, misleadingly suggest a personal concern, and contain advice tailored to the lawyer's financial interests. The state has a substantial interest in preventing these potential harms and promoting high ethical standards in the legal profession, which is undermined by allowing such solicitation. The Court should grant states more deference in regulating attorney advertising to preserve the profession's integrity and protect the public.
Concurring-in-part-and-dissenting-in-part - Justice White
Yes. While the categorical ban on targeted direct-mail solicitation is unconstitutional, the analysis of whether Shapero's specific letter was overreaching or misleading should be left to the state courts on remand. The majority correctly held that the state's blanket prohibition is inconsistent with the First Amendment. However, the Court should not have addressed the particular features of the petitioner's letter, such as its use of capitalization and subjective claims, as that is a matter for the Kentucky courts to consider in the first instance.
Analysis:
This decision significantly clarifies the scope of First Amendment protection for attorney advertising, extending the principles from Zauderer to targeted direct-mail. It firmly distinguishes written solicitation from in-person solicitation, establishing that the former cannot be categorically banned if it is truthful and non-deceptive. The ruling forces state bar associations to abandon prophylactic bans on this form of advertising and instead adopt more narrowly tailored regulatory schemes, such as screening requirements, to address potential abuses. This shifts the regulatory landscape from prohibition to oversight, placing a higher burden on states to justify restrictions on commercial speech.
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