Shapero v.Kentucky Bar Assn., 486 U.S. 466 (1988)

Shapero v.Kentucky Bar Association

No. 87-16

Argued March 1, 1988
Decided June 13, 1988
486 U.S. 466

CERTIORARI TO THE SUPREME COURT OF KENTUCKY

Syllabus

Petitioner, a member of the Kentucky Bar, applied to that State’s Attorneys Advertising Commission for approval of a letter that he proposed to send "to potential clients who have had a foreclosure suit filed against them," which, inter alia, advised the client that "you may be about to lose your home," that "[f]ederal law may allow you to . . . ORDE[R] your creditor to STOP," that "you may call my office . . . for FREE information," and that "[i]t may surprise you what I may be able to do for you." Although the Commission did not find the letter false or misleading, it declined to approve it on the ground that a then-existing Kentucky Supreme Court Rule prohibited the mailing or delivery of written advertisements "precipitated by a specific event . . . involving or relating to the addressee . . . as distinct from the general public." Nevertheless, the Commission registered its view that the Rule violated the First Amendment under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, and recommended its amendment by the State Supreme Court. Petitioner then sought an advisory opinion as to the Rule’s validity from the State Bar Association’s Ethics Committee, which upheld the Rule as consistent with Rule 7.3 of the American Bar Association’s Model Rules of Professional Conduct. On review of the advisory opinion, the State Supreme Court held that Zauderer compelled the State Rule’s deletion, and replaced it with Rule 7.3, which also prohibits targeted, direct-mail solicitation by lawyers for pecuniary gain, without a particularized finding that the solicitation is false or misleading. The court did not specify either the precise infirmity in the State Rule, or how Rule 7.3 cured it.

Held: The judgment is reversed, and the case is remanded.

726 S.W.2d 299, reversed and remanded.

JUSTICE BRENNAN delivered the opinion of the Court as to Parts I and II, concluding that a State may not, consistent with the First and Fourteenth Amendments, categorically prohibit lawyers from soliciting business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems. Such advertising is constitutionally protected commercial speech, which may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest. Zauderer, supra. Moreover, this Court’s lawyer advertising cases have never distinguished among various modes of written advertising to the general public, as is recognized by Rule 7.3’s exemption for advertising

distributed generally to persons not known to need [the particular] legal services . . but who are so situated that they might in general find such services useful.

The court below disapproved petitioner’s letter solely on the basis of its failure to qualify for this exemption, analogizing to Ohralik v. Ohio State Bar Assn., 436 U.S. 447, for the proposition that targeted, direct-mail solicitation by a trained lawyer to a potential client "overwhelmed" by his legal troubles, and therefore having an "impaired capacity for good judgment," creates a serious potential for undue influence. However, respondent’s reliance on Ohralik, which held that a State could categorically ban all in-person solicitation, is misplaced, since the two factors underlying that decision -- the strong possibility of improper lawyer conduct and the improbability of effective regulation -- are much less a risk in the targeted, direct-mail solicitation context. The recipient of such advertising is not faced with the coercive presence of a trained advocate or the pressure for an immediate yes-or-no answer to the representation offer, but can simply put the letter aside to be considered later, ignored, or discarded. Moreover, although a personalized letter does present increased risks of isolated abuses or mistakes, these can be regulated and minimized by requiring the lawyer to file the letter with a state agency having authority to supervise mailings and penalize actual abuses. Scrutiny of targeted solicitation letters will not be appreciably less reliable than scrutiny of other advertisements, since the reviewing agency can require the lawyer to prove or verify any fact stated, or explain how it was discovered, or require that the letter be labeled as an advertisement, or that it tell the reader how to report inaccurate or misleading matters. That an agency reviewing such letters might have more work than one that does not simply does not outweigh the importance of the free flow of commercial information. Pp. 472-478.

JUSTICE BRENNAN, joined by JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE KENNEDY, concluded in Part III that, although the validity of Rule 7.3 does not turn on whether petitioner’s letter itself exhibited any of the evils at which the Rule was directed, respondent’s contention that the letter is particularly overreaching, and therefore unworthy of First Amendment protection, must be addressed, since the Amendment’s overbreadth doctrine does not apply to professional advertising. However, although the letter’s liberal use of underscored, uppercase letters and its inclusion of subjective predictions of client satisfaction might catch the recipient’s attention more than would a bland statement of purely objective facts in small type, the letter presents no risk of overreaching comparable to that of a lawyer engaged in face-to-face solicitation. In light of the First Amendment’s protection, a State may claim no substantial interest in restricting truthful and nondeceptive lawyer solicitations to those least likely to be read by the recipient. Moreover, the State may not absolutely ban certain types of potentially misleading information if the information may also be presented in a nondeceptive way, or impose a more particularized restriction unless it asserts, as respondent has not done in this case, a valid substantial interest that such a restriction would directly advance. Although a letter may be so misleading as to warrant restriction if it unduly emphasizes trivial or relatively uninformative facts or offers overblown assurances of client satisfaction, respondent has not argued such defects here. Such arguments may be raised and considered on remand. Pp. 478-480.

BRENNAN, J., announced the judgment of the Court and delivered the opinion of the Court with respects to Parts I and II, in which WHITE, MARSHALL, BLACKMUN, STEVENS, and KENNEDY, JJ., joined, and an opinion with respect to Part III, in which MARSHALL, BLACKMUN, and KENNEDY, JJ., joined. WHITE, J., filed an opinion concurring in part and dissenting in part, in which STEVENS, J., joined, post, p. 480. O’CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C.J., and SCALIA, J., joined, post, p. 480.