Supreme Court considers Florida solicitation ban.

The debate over lawyer advertising returned to the U.S. Supreme Court in January, pitting the bar's wish to ensure dignified advertising against attorneys' First Amendment rights. (Florida Bar v. McHenry, No. 94-226 (argued Jan. 11, 1995).)

At issue is a Florida Bar rule that prohibits personal injury attorneys from sending solicitation letters to potential clients within 30 days of an accident or disaster. The state supreme court adopted the rule in 1990, but a trial judge struck it down as unconstitutional. The 11th Circuit affirmed that decision. (21 F.3d 1038 (11th Cir. 1994).)

Tallahassee lawyer Barry Richard defended the rule in the High Court, arguing that the state has a legitimate interest in protecting victims' privacy in the immediate aftermath of personal tragedy. He said a second reason for the rule is that direct mail solicitation so soon after an accident reflects poorly on the bar and undermines public confidence in the justice system.

"That sounds like an odd justification," Chief Justice William Rehnquist told Richard. He questioned whether protecting lawyer image is a significant enough goal to justify restricting lawyers' First Amendment rights.

Several justices also seemed to doubt Richard's argument that the regulation is content-neutral and affects only the time, place, and manner of speech - restrictions that the Court has upheld as permissible under the Constitution.

"Doesn't this regulation address only certain types of speech?" Justice Sandra Day O'Connor asked.

Justice Ruth Bader Ginsburg asked the same question in another way: "How can you say this is not content-based if it stops the plaintiff's personal injury lawyer [from contacting victims], but not the probate lawyer, not the insurance adjuster, not the defense lawyer?"

Richard replied that the bar was not interested in controlling the content of the message but the circumstances under which it is delivered.

Ginsburg and Justice David Souter suggested that the rule might not accomplish its goal of protecting victims' privacy because it applies only to plaintiffs' attorneys. "The same individual can be victimized by insurance companies, defendants, and other lawyers," Ginsburg said.

Bruce Rogow of Fort Lauderdale, representing two attorneys who challenged the rule, said the restriction is overbroad because it goes beyond prohibiting false advertising. "Truthful, nonmisleading information is of great benefit to those who receive it," Rogow said.

He called the bar's claim that the rule will enhance the reputation of the bar "a hollow argument."

"There is nothing in this record that says truthful, nonmisleading, tightly regulated letters" undermine the dignity of the profession, he said. "We've fought an image issue for a long time. It's not going to be remedied by prohibiting these letters."

But Justice Anthony Kennedy noted that a victim of a recent accident or disaster is "not the model of a rational consumer" and might need protection for a limited time until the person can make informed choices about legal services.

O'Connor suggested that because lawyers must be licensed by the states to practice, "it isn't as though the lawyer is a totally free agent." She said lawyers have always been subject to more state control than people in other lines of work.

Nevertheless, the Supreme Court has struck down restrictions on lawyer advertising three times since 1988:

* In Shapero v. Kentucky Bar Association, the justices held that lawyers may not be barred from soliciting potential clients by direct mail. (486 U.S. 466 (1988).)

* In Peel v. Attorney Registration and Disciplinary Commission of Illinois, the Court said lawyers may identify themselves in advertisements as specialists in certain legal fields if they are certified by appropriate agencies. (496 U.S. 91 (1990).)

* In Ibanez v. Florida Department of Business and Professional Regulation, Board of Accountancy, the Court held that lawyers may not be prevented from truthfully identifying themselves as certified public accountants or certified financial planners. (114 S. Ct. 2084 (1994).)

The argument in McHenry was punctuated by light moments in which the justices suggested ways to improve lawyer image. "Perhaps we should pass a law against saying unnice things about lawyers," said Justice John Paul Stevens. "Or against reading Shakespeare or Dickens," Ginsburg added.

ATLA filed an amicus brief supporting the Florida Bar rule. The brief argued that the 30-day ban on solicitation is reasonable because victims' right to an impartial jury may be adversely affected by lawyer advertising.

The brief cited studies showing that jurors who have seen lawyer ads may be biased against plaintiffs and find them less credible in court.