Shapero v. Kentucky Bar Association

PETITIONER: Richard D. Shapero
RESPONDENT: Kentucky Bar Association
LOCATION: Kentucky Bar Association Center

DOCKET NO.: 87-16
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT:

CITATION: 486 US 466 (1988)
ARGUED: Mar 01, 1988
DECIDED: Jun 13, 1988
GRANTED: Oct 05, 1987

ADVOCATES:
Donald L. Cox - for the petitioner
Frank P. Doheny, Jr. - for the respondent

Facts of the case

Richard Shapero submitted a client solicitation letter to the Kentucky Attorneys Advertising Commission for approval. Shapero directed the letter at individuals who were about to lose their houses to foreclosure. The Commission found nothing false or misleading with the letter, but denied approval under a Kentucky Supreme Court rule, which prohibited direct mail advertisements “precipitated by a specific event” such as foreclosure. Shapero then sought an advisory opinion from the Kentucky Bar Association’s Committee on Legal Ethics. The committee upheld the Advertising Commission’s ruling. On review, the Kentucky Supreme Court affirmed.

Question

Does a Kentucky Supreme Court rule prohibiting direct mail advertisements by attorneys to prospective clients, even when there is no false or misleading information, violate the First Amendment?

Media for Shapero v. Kentucky Bar Association

Audio Transcription for Oral Argument - March 01, 1988 in Shapero v. Kentucky Bar Association

Audio Transcription for Opinion Announcement - June 13, 1988 in Shapero v. Kentucky Bar Association

William H. Rehnquist:

The opinions of the Court in two cases, No. 87-16, Shapero against Kentucky Bar Association, and No. 87-157, Allied Tube & Conduit Corporation versus Indian Head will be announced by Justice Brennan.

William J. Brennan, Jr.:

The first case is here on certiorari to the Supreme Court of Kentucky.

The Attorneys Advertising Commission of Kentucky's integrated Bar Association is charged with the responsibility of regulating attorney advertising as prescribed by Rules of the Kentucky Supreme Court.

The Commission's decisions are appealable to the Board of Governors of the Kentucky Bar Association, and they are ultimately reviewable by the Supreme Court of Kentucky.

One of the provisions says that any attorney who is in doubt as to the propriety of any professional act contemplated by him has the option of seeking an advisory opinion from the committee of the Kentucky Bar Association which are formally adopted by the Board of Governors is reviewable by the Supreme Court of Kentucky.

In this case, petitioner, a member of the Kentucky Bar, applied to the Commission for approval of a letter that he proposed to send to potential clients who have had a foreclosure suit filed against them which among other things advised the client that is solicited, “You may be about to lose your home, [f]ederal law may allow you to ORDE[R] your creditor to STOP," you may call my office for FREE information, [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 our decision in Zauderer, a few terms ago and recommended the Rule's amendment by the State Supreme Court.

Petitioner then sought an advisory committee -- an opinion rather, as to the Rule's validity from the State Bar Association's Ethics Committee, and that Committee 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 our decision in Zauderer compelled the State Rule's deletion, and replaced it with a copy of the American Bar Association Rule 7.3, which also prohibits targeted direct-mail solicitation by lawyers for a pecuniary gain without a particularized finding that the solicitation is false or misleading.

The Court did not specify either the precise informative -- infirmity in the State Rule or how the American Bar Association Rule 7.3 cured it.

We reverse the judgment of the Kentucky Supreme Court and remand.

I have filed an opinion which holds for the Court as to Parts I and II 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 non-deceptive 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.

Moreover, this Court's lawyer advertising cases have never distinguished among various modes of written advertising to the general public, as is recognized by American Bar Associations 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 our decision again of a few terms ago in Ohralik 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 the State could categorically ban all in-person solicitation, we think is misplaced.

There are 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 or to be considered later, ignored, or discarded.

Moreover, although a personalized letter does present increased risk of isolated abuses or mistakes, these we think can be regulated and minimized by requiring the lawyer to file a letter with a state agency as in Kentucky having authority to supervise mailings and penalize actual abuses.

Scrutiny of targeted solicitation letters will not be appreciably less reliable in our view 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.

Then, as to Part III of the opinion I have filed, which is joined by Justice Marshall, Justice Blackmun, and Justice Kennedy, concludes that although the validity of Rule 7.3 doesn't 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 in 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 types.

The letter presents no risk of overreaching comparable to that of a lawyer engaged in face-to-face competition.

Justice White joined by Justice Stevens although agreeing with Parts I and II of the Court's opinion, express the view that the matters addressed in Part III should be left to the state courts in the first instance.

Justice White has filed an opinion therefore, concurring and dissenting in part in which Justice Stevens has joined.

Justice O'Connor has filed a dissenting opinion in which the Chief Justice and Justice Scalia have joined.