Tag Archives: Lawyer advertising solicitation

U.S. Sixth Circuit Court of Appeals strikes down Ohio law which prohibited solicitation of potential workers’ compensation claimants

Hello everyone and welcome to this Ethics Alert, which will discuss the recent United States Sixth Circuit Court of Appeals opinion which struck down an Ohio law which prohibited solicitation of potential workers’ compensation claimants as a violation of the First Amendment of the U.S. Constitution.  The case is Bevan & Associates v. Yost, Case No. 18-3262 (U.S. Sixth Circuit Court of Appeals) and the July 8, 2019 opinion is here: http://www.opn.ca6.uscourts.gov/opinions.pdf/19a0144p-06.pdf

The Ohio statute prohibited all solicitations to represent claimants or employers in workers’ compensation cases.  The statute states as follows: “No person shall directly or indirectly solicit authority, or pay or give anything of value to another person to solicit authority, or accept or receive pay or anything of value from another person for soliciting authority, from a claimant or employer to take charge of, or represent the claimant or employer in respect of, any claim or appeal which is or may be filed with the bureau or commission.” Ohio Rev. Code § 4123.88(A).

The Ohio statute had an exception permitting access to journalists and, according to the opinion, “Bevan hired Capital Publishing, a journalistic service, and Regina Mace, a former client and apparent journalist, to use the journalist exception to gain access to the Bureau’s claimant information. Bevan then combined the information it acquired from the journalists with information it had obtained from other outlets (including claimant information obtained from the Bureau prior to the 2006 amendments) to compile a list of individuals who would eventually receive direct mail advertisements. Bevan then sent advertisements to these potential customers.  The advertisements were addressed to ‘INJURED . . . WORKER’ and alerted the worker to the fact that they might be ‘entitled to an additional CASH AWARD for your injury that the Ohio Bureau of Workers Compensation (BWC) has not told you about!’ R. 38-2, Page ID 172–73. Bevan’s letters also included a disclaimer which stated that ‘This ADVERTISING MATERIAL is not intended to be a SOLICITATION under Ohio’s Rules governing lawyers, as it is unknown whether the recipient is in need of legal services.’”

The law firm filed the federal lawsuit after the journalist received a subpoena from an Ohio grand jury investigating a possible violation of the Ohio law.  Lawyers for the state of Ohio argued that the solicitation prohibition was part of a larger statutory structure restricting access to claimant address information from the state workers’ compensation bureau, which was adopted in 2006.

According to the opinion:  “(T)he First Amendment provides “protection, in pertinent part, against laws ‘abridging the freedom of speech.’ U.S. Const. amend. I. Although the First Amendment ‘accords a lesser protection to commercial speech than to other constitutionally guaranteed expression,’ Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 563 (1980), it nonetheless protects truthful commercial speech that is not related to unlawful activity, id. at 564.”

“Under the framework of Central Hudson, when analyzing regulation of commercial speech, we follow a four-part test. (1) The commercial speech must not be misleading nor relate to unlawful activity, for the First Amendment does not protect ‘commercial messages that do not accurately inform the public about lawful activity.’ Id. at 563–64. If this criterion is satisfied, the regulation can survive only if (2) the government can show a substantial interest in restricting the commercial speech, (3) the regulation at issue directly advances the governmental interest, and (4) the regulation is ‘designed carefully to achieve the State’s goal.’ Id. at 564.  A regulation is ‘designed carefully’ if it directly advances the asserted government interest and there is no more narrow regulation that might achieve the same goals. Id.”

The opinion held:  “Because Ohio’s interest in protecting claimant privacy cannot outweigh Bevan’s right to engage in commercial speech, and because § 4123.88(A) completely bars solicitation, the statute fails the Central Hudson test.”  The opinion further found that, even if the law firm had violated the Ohio law prohibiting access to claimant information, this would not be relevant to the issue of whether the blanket solicitation prohibition is constitutional since, on its face, the statute prohibits all solicitation of claimants, no matter how the information was obtained and, “(a)s written, this prohibition is repugnant to the free speech clause of the First Amendment.”

Bottom line:  This case is certainly consistent with other federal and U.S. Supreme Court decisions which prohibit states from enacting blanket prohibitions of direct solicitation of clients; however, the opinions do permit the states to place reasonable “time, place, and manner” restrictions on such activities, such as Florida’s 30 day restriction on solicitation of potential personal injury clients and other advertising disclosure/disclaimer requirements.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Association of Professional Responsibility Lawyers (APRL) issues report recommending substantial revisions to advertising and solicitation rules

Hello everyone and welcome to this Ethics Alert blog which will discuss the recent report of the Advertising Committee of Association of Professional Responsibility Lawyers (APRL) recommending revisions to the lawyer solicitation rules.  The April 26, 2016 report of the APRL Regulation of Lawyer Advertising Committee is here:  https://www.aprl.net/publications/downloads/APRL_2016_Lawyer-Advertising-Supplemental-Report_04-26-16_w-Attach.pdf

The APRL Advertising Committee’s previous report dated June 22, 2015, discussed concerns about overly restrictive and inconsistent state regulation of lawyer advertising, particularly related to electronic media advertising. That APRL report recommended substantial revisions to the lawyer advertising rules “to achieve greater rationality and uniformity in regulatory enforcement of lawyer advertising and marketing and proposed a new Model Rule 7.1 to replace ABA Model Rules 7.1, 7.2, 7.4 and 7.5 and by the use of non-disciplinary means to address most complaints about lawyer advertising.” The June 22, 2015 APRL report is here: https://www.aprl.net/publications/downloads/APRL_2015_Lawyer-Advertising-Report_06-22-15.pdf

The June 22, 2015 report further states: “It is long past time for rationality and uniformity to be brought to the regulation of lawyer advertising.  The Committee recommends that the ABA Model Rules governing communications about legal services be consolidated into a single disciplinary rule that simply prohibits false or misleading statements.  Adopting this approach to advertising regulation, combined with reasonable uniform enforcement policies and protocols by state disciplinary authorities, is in the Committee’s view the best way to ensure honest communication by lawyers while at the same time promoting the widest possible access by the public to legal services.”

Current ABA Model Rule 7.3 (solicitation) states:

(a)  A lawyer shall not by in‑person, live telephone or real-time electronic contact solicit professional employment when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain…

According to the April 26, 2016 report, “(t)he Committee has now considered the solicitation rules and has concluded that the legitimate regulatory objectives of preventing overreaching and coercion by lawyers who use in-person solicitation and targeted communications with the primary motivation of pecuniary gain can best be achieved by combining provisions of Model Rules 7.2 and 7.3 in a single rule. The Committee’s proposed revisions of Model Rules 7.2 and 7.3 in the form of new Rule 7.2 is set forth in Attachment A. The Committee’s revised rule both defines solicitation and distinguishes solicitations that are prohibited from those that are permitted with appropriate protections.”

The proposed rule is below:

Rule 7.2 Solicitation of Clients Solicitation

(b) Except as provided in paragraphs (c) and (e), a lawyer shall not solicit in person by face to-face contact or live telephone, or permit employees or agents of the lawyer to solicit in person or by live telephone on the lawyer’s behalf, professional employment from a prospective client when a significant motive for doing so is the lawyer’s pecuniary gain, unless the person contacted: (1) is a lawyer; (2) is a sophisticated user of legal services; (3) is pursuant to a court-ordered class action notification; or (4) has a family, close personal, or prior professional relationship with the lawyer.

The proposed rule revision would still prohibit “in person” solicitation by a lawyer or the lawyer’s agent “face-to-face” or via “live telephone”, “when a significant motive for doing so is the lawyer’s pecuniary gain.” The proposed rule would permit solicitation if the person:

(1) is a lawyer;

(2) is a sophisticated user of legal services;

(3) is pursuant to a court-ordered class action notification; or

(4) has a family, close personal, or prior professional relationship with the lawyer.

The proposed rule would remove the provision in the current model rule which applies the solicitation rule to chat-room communications and would expressly allow a lawyer to solicit a “sophisticated” user of legal services, which it defines as “an individual who has had significant dealings with the legal profession or who regularly retains legal services for business purposes.”  The committee stated that it believes that such a sophisticated user does not need the protection of the lawyer-conduct anti-solicitation standards because of his or her sophistication.   APRL is attempting to present these proposals to the ABA House of Delegates in 2017.

Florida’s current direct contact/solicitation rule is below:

RULE 4-7.18 DIRECT CONTACT WITH PROSPECTIVE CLIENTS

(a)        Solicitation. Except as provided in subdivision (b) of this rule, a lawyer may not:

(1)        solicit, or permit employees or agents of the lawyer to solicit on the lawyer’s behalf, professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. The term “solicit” includes contact in person, by telephone, telegraph, or facsimile, or by other communication directed to a specific recipient and includes any written form of communication, including any electronic mail communication, directed to a specific recipient and not meeting the requirements of subdivision (b) of this rule and rules 4-7.11 through 4-7.17 of these rules.

As I reported in my August 20, 2015 Ethics Alert, The Florida Bar’s Board of Governors reversed a Bar Advertising Committee opinion that text messages were direct contact/solicitations and found that a law firm can send texts to prospective clients as long as the messages comply with the Bar rules on written and e-mail communications.  The Florida Bar rules also require that the first line of the text state that the communication is “advertising” and, if the text is a communication about a specific matter, it must have language stating that, if the recipient already has an attorney, he or she should disregard the text.  The text must also disclose how the law firm got the recipient’s name.  The August 20, 2015 Ethics Alert is here: https://jcorsmeier.wordpress.com/2015/08/20/florida-bar-board-of-governors-finds-that-unrequested-texts-to-prospective-clients-on-specific-matters-are-not-prohibited-solicitations/

Bottom line:  The APRL’s proposed solicitation rule is a long way from implementation.  Even if the provision is approved by the ABA, the Model Rule is non-binding and each individual state Bar and Supreme Court would have to approve it for it to be implemented and become binding in those states.

Be careful out there!

Disclaimer:  this Ethics Alert is not an advertisement and does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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