G. Sixth Circuit Upholds 30-Day Ban on Attorney Solicitation

     In Chambers v. Stengel, 256 F.3d 397 (6th Cir. 2001), the U.S. Court of Appeals for the Sixth Circuit upheld the constitutionality of a Kentucky statute that imposes a 30-day ban on attorneys’ solicitation of accident or disaster victims for the purpose of obtaining professional employment.  The law is similar to a Florida ban on attorney solicitation upheld by the U.S. Supreme Court in Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995).   

     From Bates v. State Bar of Arizona, 433 U.S. 350 (1977), through Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988), the Supreme Court had been fairly consistent in expanding the commercial speech rights of lawyers to advertise their services, over the objections of (among others) Justice Sandra Day O’Connor and the Kentucky Bar Association. 

     But in Florida Bar v. Went For It, Inc. the Court, in an opinion by Justice O’Connor, upheld the constitutionality of a Florida Bar rule that prohibits lawyers from sending written solicitations to prospective clients if the solicitations concern an action for personal injury or wrongful death or otherwise relate to an accident or disaster that occurred within 30 days of the mailing.  The rule creates a 30-day blackout period during which lawyers may not, directly or indirectly, single out specific victims or their relatives to solicit their business.  Justice O’Connor found that this limitation on a lawyer’s right to advertise met the requirements of Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 US. 557 (1980). 

     The Kentucky Bar, which had been unsuccessful in Shapero in attempting to prohibit lawyers from soliciting business through the mailing of truthful letters addressed to persons with known legal problems, embraced Went For It, Inc.  The Kentucky legislature then enacted Kentucky Revised Statute Annotated Sec. 21 A. 300, which provides the same 30-day ban on solicitation of specific accident or disaster victims for the purpose of obtaining professional employment.  Violation of this statute is a Class A misdemeanor punishable by a term of imprisonment up to one year and bar discipline by the Kentucky Supreme Court.

     In Chambers v. Stengel, the Sixth Circuit upheld the Kentucky law in the face of numerous claims: violation of due process because of vagueness of the term “solicitation”; denial of equal protection because it singled out lawyers for commercial speech restriction; violation of separation of powers because the legislature provided for lawyer discipline by the Kentucky Supreme Court; and, finally, violation of the First Amendment protection for commercial speech.

     As to the First Amendment claim, the Sixth Circuit used Central Hudson with Went For It, Inc. as a template.  The plaintiff tried to distinguish Went For It by arguing that the state had not established that its citizens think less of lawyers because of such solicitations, nor had the state shown that the lawyers’ speech restrictions set forth in the statute would alleviate the conduct.  The Sixth Circuit, relying on the same kind of unscientific, anecdotal evidence that Justice O’Connor embraced in Went For It, rejected this argument. 

     The appeals court relied on the Florida Bar’s anecdotal study in Went For It as well as: (1) an affidavit from a Kentucky legislator who sponsored the legislation affirming that, after being involved in a vehicular accident, he received at least 15 solicitation letters from attorneys; (2) an affidavit from the executive director of the Kentucky Bar Association summarizing a survey revealing the displeasure of the public with such attorney solicitations; (3) articles and letters appearing in the Louisville Courier-Journal and the Kentucky Bar’s own journal; and (4) statistics of the frequency of automobile accidents in Kentucky. 

     All of this proved, according to the appeals court, that the statute would materially and directly advance the state’s interest in the privacy of Kentuckians and the reputation of Kentucky attorneys.