Two Atlanta personal-injury attorneys, Robert Falanga and Robert Chalker, sued the state bar in federal court after bar officials investigated them for alleged violations of numerous attorney conduct rules, including the ban on face-to-face solicitation.

Falanga and Chalker obtain new clients through in-person, telephone, and direct- mail solicitation. They also, in the words of Falanga, "wine and dine chiropractors."

The personal-injury attorneys challenged 10 attorney conduct rules that included prohibitions on:

• soliciting non-lawyers through "direct personal contact";
• making any communication to a prospective client that "is likely to create an unjustified expectation about results" the attorney can achieve;
• making any communication to a prospective client that "compares the lawyer's services with other lawyers" services unless the comparison can be factually substantiated";
• sending any written solicitation to a prospective client without a clear disclaimer stating "Advertisement";

The federal district court found seven of the rules constitutional, but found three of the rules violative of the First Amendment, including the complete ban on in-person attorney solicitation.

On appeal, the Eleventh Circuit determined that all of the rules were constitutional, devoting the bulk of its analysis to the in-person solicitation ban.

Bar officials principally relied on the 1978 U.S. Supreme Court decision Ohralik v. Ohio State Bar Association in which the High Court ruled that similar Ohio rules regulating in-person attorney solicitation were constitutional.

However, Falanga asserted that his conduct in no way approached the intrusive conduct of Ohralik, who solicited prospective clients in hospital beds.

Furthermore, Falanga asserted that the 1993 U.S. Supreme Court decision in Edenfield v. Fane should be the Eleventh Circuit's guiding precedent rather than the pre- Central Hudson case of Ohralik. In Edenfield, the High Court struck down a Florida rule banning in-person solicitation by certified public accountants, writing that "in the commercial context, solicitation may have considerable value."

The Eleventh Circuit reasoned that "although Falanga's and Chalker's conduct may not be as egregious as Ohralik's, they cannot seriously contend that Edenfield saves their case.... Plainly, this case is closer to Ohralik than Edenfield" and "for all intents and purposes this case is Ohralik," wrote the court.

• protecting the public from "vexatious conduct";
• preventing invasions of privacy;
• improving the public's confidence in the legal profession; and
• promoting the independent judgment of lawyers and prohibiting the unauthorized practice of law.

The appeals court also found that the restrictions advanced the state's interests in a direct and material way. The court relied on anecdotal evidence provided by the bar's general counsel and assistant general counsel. The court also relied on an independent study entitled "Consumer Reactions to Legal Services Advertising in the State of Georgia" that focused on the effects of television advertising and the public's opinion of attorneys.

Finally, the court also held that the rules were no more extensive than necessary, finding that "many other modes of advertising are available to lawyers."

Falanga filed motion for en banc review to the Eleventh Circuit on Sept. 8, concluding that the three-judge panel "managed to misapply precedent to come to a completely erroneous decision, based solely on the outrageous facts of Ohralik."