Fourth Circuit Reaffirms Attorney Advertising Protection by Striking 30-Day Direct-Mail Ban

By Richard T. Kaplar

Drawing on a long line of attorney advertising cases -- while sidestepping the Supreme Court's curious Went For It ruling -- the Fourth Circuit in July ruled that a Maryland ban on attorney direct-mail solicitation was unconstitutional.

The ban prohibited lawyers from sending direct-mail solicitations for 30 days to persons charged with traffic and criminal offenses. In Ficker v. Curran, however, the court reaffirmed the interest of individuals in receiving timely information about legal representation -- the principle underlying First Amendment protection for much attorney advertising since Bates in 1977.

The Fourth Circuit acknowledged Maryland's interests in "shielding recipients from undue influence or confusion, guarding recipients' privacy, and protecting the reputation of the legal profession." But the 30-day ban failed to directly and materially advance those interests, thus failing Part 3 of the Central Hudson test, the court said.

A targeted letter does not overwhelm the recipient any more than an untargeted letter or newspaper ad, and does not carry the coercive force of an in-person solicitation (Shapero, Zauderer). Regarding privacy, the court noted that a targeted letter does not invade one's privacy more than a mailing at large, and that a defendant's arrest is a matter of public record, anyway.

The ban likewise failed to advance the state's interest in maintaining the reputation of the legal profession: Individuals receiving needed information would have no particular reason to hold attorneys in low esteem; conversely, those with a low opinion of lawyers would be offended by a solicitation no matter when it arrived.

The Fourth Circuit also concluded that the ban failed Central Hudson Part 4 (narrowly tailored means) because the government's ends could be advanced by means less burdensome to speech. For example, solicitations could be labeled as advertisements, or the state could require the text of solicitations to be filed with a state agency for review, the court said.

The circuit court took great pains to distinguish Ficker from Florida Bar v. Went For It, Inc. In that 1995 decision, the Supreme Court upheld a 30-day ban on direct-mail solicitations to accident and disaster victims and their relatives.

Accident victims are fundamentally different than those charged with a crime, the court said. "While a criminal or traffic defendant may be shaken by his arrest, what he needs is representation, not time to grieve."

Criminal defendants also face an accelerated calendar under which they can lose rights if they do not act swiftly -- and thus have a more urgent need for immediate representation. Moreover, the arrestee is in the legal system involuntarily and has already had his privacy compromised.

For all of these reasons, Ficker's ban on direct-mail solicitation could be readily distinguished from the ban in Went For It, the court concluded.

The court emphasized that its holding was a narrow one and did not address coercive solicitations, personal visits, phone calls, or ads that are inaccurate or misleading.

Nonetheless, the decision is noteworthy in three respects: First, it is a significant reaffirmation of First Amendment protection for attorney advertising that is especially welcome in light of Went For It.

Second, Ficker shows the Fourth Circuit's continuing willingness to distance itself from Supreme Court decisions, much as it distinguished its Baltimore billboard cases from the Supreme Court's 44 Liquormart ruling.

Finally, and unlike the court's approach in the billboard cases, Ficker reflects a careful application of the Central Hudson test -- particularly the Fourth Circuit's unwillingness to accept the state's assertion, absent a well-documented showing, that the rule would be effective.

Ficker v. Curran, 950 F. Supp. 123 (D. Md. 1996), aff'd, 119 F.3d 1150 (4th Cir. 1997).

Florida Bar v. Went For It, Inc., 115 S. Ct. 2371 (1995).

Bates v. State Bar of Arizona, 433 U.S. 350 (1977).

Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y., 447 U.S. 557 (1980).

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

Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985).

44 Liquormart, Inc. v. Rhode Island, 517 U.S. __, 116 S. Ct. 1495 (1996).