| Original Full Text | Maine Law Review Volume 42 Number 2 A Tribute to Dean L. Kinvin Wroth Article 8 June 1990 Solicitation by Lawyers: Piercing the First Amendment Veil Louise L. Hill Follow this and additional works at: https://digitalcommons.mainelaw.maine.edu/mlr Part of the Constitutional Law Commons, First Amendment Commons, Legal Ethics and Professional Responsibility Commons, and the Legal Profession Commons Recommended Citation Louise L. Hill, Solicitation by Lawyers: Piercing the First Amendment Veil, 42 Me. L. Rev. 369 (1990). Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol42/iss2/8 This Article is brought to you for free and open access by the Journals at University of Maine School of Law Digital Commons. It has been accepted for inclusion in Maine Law Review by an authorized editor of University of Maine School of Law Digital Commons. For more information, please contact mdecrow@maine.edu. SOLICITATION BY LAWYERS: PIERCINGTHE FIRST AMENDMENT VEILby Louise L. Hill*I. INTRODUCTIONHistorically, the legal profession has considered the solicitation ofbusiness inappropriate.' The profession has articulated this condem-nation of solicitation, which developed as a principle of good tasteamong a small and homogeneous group of practitioners, 2 in the formof specific rules prohibiting its members from engaging in certainforms of conduct.2 In recent years, the United States Supreme Courthas considered various rules that restrict the commercial speech oflawyers.4 Reviewing these proscriptive rules, the Court struck downcategorical bans on lawyer advertising5 and targeted, direct mail so-licitation 6 as violative of the first amendment. Because the free flowof information to the public is the primary justification for protect-ing commercial speech,7 the Court upheld the general right of law-yers to disseminate truthful, nondeceptive information and advice topotential clients. Nonetheless, the Court indicated that rules prohib-iting in-person solicitation are permissible; they properly addressthe increased risk of overreaching and undue influence associatedwith face-to-face communication with potential clients. 8A review of the analysis implemented by the United States Su-preme Court in its treatment of restrictions on lawyers' speech illus-trates the tenuous line that has been drawn between permissible andimpermissible solicitous conduct. The Court maintains that, pro-vided the speech in question is neither false nor misleading, its regu-lation must be no more extensive than is necessary to achieve thesubstantial state interest advanced by the regulation. Viewing law-yers' commercial speech within this context, categorical proscrip-* Associate Professor of Law, Widener University School of Law. For their timeand thoughtful comments, the author wishes to express her gratitude to her colleagueProfessor Margaret V. Sachs, Widener University School of Law, and her former col-leagues Professor Gerald P. Moran, Professor Bruce A. Campbell and Father RobertB. Kirkland, University of Toledo College of Law.1. See infra notes 62-66 and accompanying text.2. See infra note 66 and accompanying text.3. See infra notes 90-100 and accompanying text.4. See infra notes 129-62 & 171-214 and accompanying text.5. See infra notes 103, 129-36 and accompanying text.6. See infra notes 104 & 200-214 and accompanying text.7. See infra note 226 and accompanying text.8. See infra notes 159-60 & 206-214 and accompanying text.9. See infra notes 178-79 & 190 & 212 and accompanying text. Compare notes168-70 for discussion of "least-restrictive means" analysis with notes 215-23 for dis-cussion of later modifications to the analysis.MAINE LAW REVIEW [Vol. 42:369tions on in-person solicitation are not tailored narrowly enough toprevent the perceived evils of overreaching and undue influence. Farless restrictive and more precise means exist to achieve the statedobjectives. As the rules prohibiting in-person solicitation of clientspresently stand, they lack a firm historical basis and constitute aviolation of the first amendment.This Article will trace the historical development of attitudesabout the impropriety of solicitation. It will then discuss the devel-opment of first amendment protection for commercial speech, and inparticular, the United States Supreme Court cases in which restric-tions on the commercial speech of lawyers are specifically at issue.The Article will then demonstrate that, under the present analysisof the Supreme Court, existing categorical bans on direct in-personsolicitation of clients are both unconstitutional and detrimental tosociety in general, and to the legal profession in particular.I. PROSCRIPTIONS AGAINST SOLICITATION: A HISTORICALPERSPECTIVETraditionally, the legal profession has always frowned upon pur-suing clients overtly. Although the solicitation of business has beenconsidered improper, rules forbidding members of the legal profes-sion to solicit prospective clients are of relatively recent origin.10While guidelines and rules against solicitation have been in exis-tence for only one century, the belief that solicitation should be dis-couraged arose during the formative period of the profession." Theroots of this attitude can be traced to the early historical develop-ment of lawyers.12A. The Lawyer in the Classical PeriodBoth lawyers and proscriptions against solicitation have theirroots in ancient Greek and Roman law.13 In ancient Greece, a con-troversy was thought properly to concern only the judge and personsactually involved in the underlying transaction.14 Greek society hadstrong feelings against outside interference in the legal process. Not-withstanding this aversion, friends and relatives could escort the liti-10. See infra notes 90-100 and accompanying text.11. See infra notes 62-66 and accompanying text.12. See infra notes 13-35 and accompanying text.13. See generally F. MAITLAND & F. MONTAGUE, A SKETCH OF ENGLISH LEGAL His-TORY 37-42 (1915, reprinted 1978); F. POLLOCK & F. MAITLAND, THE HISTORY OF ENG-LISH LAW 1-3 (2d ed. 1968); T. SCRUTTON, INFLUENCE OF THE RomAN LAW ON THE LAWOF ENGLAND 12 (1885, reprinted 1985); Radin, Maintenance by Champerty, 24 CALIF.L. REv. 48 (1935). But cf. M. GAGARIN, EARLY GREEK LAW 17 (1986) (Early codes oflaw from England and the continent "show influence from Roman or canon law"(though common law may have been relatively untouched by this influence)).14. Radin, supra note 13, at 48.1990] SOLICITATION BY LAWYERSgant to trial and render assistance. 15 In fact, a litigant who camebefore a judge flanked by supporters was viewed as a person ofpower and dignity.1 A litigant not so supported was considered amiserable wretch.1 7By the sixth century B.C., a friendless litigant was permitted to beassisted by others under certain circumstances. 8 This interventionon behalf of another, declared to be in the public interest, was stillconsidered exceptional. 9 Over time, this privilege of interventionwas intolerably abused.2 0 The intervenor came to be knovm as a"sycophant," an individual who voluntarily undertook the prosecu-tion of a matter, being motivated by money, prestige, or politicaladvantage.2 A sycophant was a man maintaining quarrels as a15. Id.16. Id. at 49.17. Id.18. Id. Intervention on behalf of another was first permitted for an injured partywho could not effectively appear against a more powerful antagonist. Id.19. Solon provided Athens with a written code of laws wherein he enabled "thevolunteer to avenge the wronged." D. MAcDoWELL, Tan LAw iN CLASSiCu. A'AnNs 53(1978). See generally G. CALHOUN. THE GROWTH OF CRIMINAL LAW IN ANc='r GREEc73-74 (1927) for a general discussion of Solon's criminal legislation. It is felt that theinclusion of this statement implies that, until Solon's time, a prosecution for an of-fense could be brought only by the victim or his family member. D. MAcDoWEL,supra, at 53.20. Radin, supra note 13, at 49.21. Id.; D. MAcDowEI., supra note 19, at 62. The Greek word "sykophantes" is avague disparaging word for an unjustified accuser. Id. at 62-63. Simonides is creditedwith stating that "as every lark has its crest, so in every democracy vill be found asycophant." J.W. JoNs, THE LAw AND LEGAL THEORY OF THE GEaxS 123 (1956)(quoting Plut. Tim. 37.1). Sycophants are familiar to the modem reader from Aris-tophanes's satirical treatment of them. For example, in a noted scene in Aklharnians,a Megarian comes to market to sell his daughters, disguised as pigs, and a sycophantattempts to accuse him of selling goods from an enemy state. After the sycophant isrun off, the Megarian states: "What an evil this is in Athens!" D. MAcDowm±, supranote 19, at 63 (quoting Aristophanes's Akharnians's 818-29). It is felt. however, thatAristophanes's view of sycophants softened over time; he allowed a sycophant to de-fend his activities in Wealth, his last surviving play:Sycophant: 0 Zeus and gods! Must I put up with being treated ignomini-ously by these men? How distressing that I, a worthy, patriotic man, shouldsuffer this!Good man: You, patriotic and worthy?Sycophant- Yes, more than any man.Good man: Tell me something, will you?Sycophant: What?Good man: Are you a farmer?Sycophant: Do you think I'm crazy?Good man: A merchant, then?Sycophant: Oh yes; at least I give that excuse sometimes.Good man: Well then, have you learned a craft?Sycophant: Certainly not.Good man: How do you get your living then, if you don't do anything?Sycophant: I supervise all public and private affairs.MAINE LAW REVIEW [Vol. 42:369means of political agitation" or as a means to harass the other liti-gant. Disinterested intervenors were looked upon with grave suspi-cion, and as a result, they were often driven to invent or allege someprivate interest in a matter in order to avoid a charge of sycophancyor abuse of process.23As in the ancient Greek system, an aura of distrust continued tosurround the disinterested intervenor in the Roman system. 4 Eventhough advocacy became a recognized profession during the Repub-lic, 25 the advocate nevertheless had to maintain the pretense of apersonal connection with the proceedings.2" The sycophancy ofGood man: What makes you do that?Sycophant: I volunteer.Good man: How can you be a worthy man, you villain, if you make enemiesover matters that are not your business?Sycophant: Isn't it my business to serve my own city as far as I can, youidiot?Good man: To serve it? Do you mean to meddle with it?Sycophant: No; to support the laws that have been made, and not to allowanyone to do wrong.Good man: Doesn't the city appoint jurors for that purpose?Sycophant: But who prosecutes?Good man: The man who volunteers.Sycophant: Well, that's who I am. So the city's affairs depend on me.D. MAcDOWELL, supra note 19, at 63-64 (quoting Aristophanes's Wealth 898-919).22. Radin, supra note 13, at 51.23. See J.W. JONES, supra note 21, at 124; Radin, supra note 13, at 50. Atheniansthemselves were permitted to charge a man with sycophancy; however, the number ofmen who could be so charged on one occasion was limited to three citizens and threemetics (resident aliens). Pursuant to a charge of sycophancy, there was a hearing fol-lowed by a jury trial, with the penalty being fixed by the jury. See D. MACDOWELL,supra note 19, at 65.24. Radin, supra note 13, at 52 (Roman attitudes toward the sycophants weresomewhat less hostile).25. R. POUND, THE LAWYER FROM ANTIGUITY TO MODERN TIMES 44-50 (1953)(these original Roman advocates were called "patrons"); Radin, supra note 13, at 52.The three primary periods of ancient Roman history are the Monarchy (dating from753 B.C.), the Republic (dating from 510 B.C.), and the Empire (dating from 27B.C.), the titles reflecting the different forms of government that prevailed. See gen-erally H.F. JOLOWICZ, HISTORICAL INTRODUCTION TO THE STUDY OF ROMAN LAW 1-3(1939). The "[high-water mark of Roman advocacy was attained in the last period ofthe republic and the beginning of the empire." R. POUND, supra, at 48.26. See A. GREENIDGE, THE LEGAL PROCEDURE OF CICERO'S TIME 146, 235-43(1901); R. POUND, supra note 25, at 38, 47; Radin, supra note 13, at 52. See also L.WENGER, INSTITUTES OF THE ROMAN LAW OF CIVIL PROCEDURE 87-88 (Fisk trans. 1940).Prior to the development of procedural representation, the party was required to con-duct the proceeding himself, with the legal assistant merely advising or speaking onbehalf of the party. Id. The assistance rendered by advocates was presumed to begratuitous. R. POUND, supra note 25, at 52. Fees could not be imposed and contractsfor the payment of fees were not actionable. Radin, supra note 13, at 52. During thetime of the Republic, this was generally not an issue, for advocates were usually menfrom wealthy families whose motives were political in nature. See R. POUND, supranote 25, at 52-53. In the Empire, when the nature of the advocate changed and menSOLICITATION BY LAWYERSGreece was called "calumnia" under the Roman system.27 The Ro-man calumniator was roughly analogous to the Greek sycophant."The calumniator also brought unnecessary or baseless actions,"0which were either wholly unfounded or based on a trifling griev-ance.30 Still present was the belief that a controversy properly con-cerned only persons actually involved in the underlying transac-tion.31 This attitude, along with the general distrust of disinterestedintervenors, naturally quelled solicitation by men seeking to renderlegal assistance.With the advent of Christianity, the whole litigation process itselfcame to be disfavored.2 Forgiveness was a fundamental Christianvirtue. Also, litigants who appeared in court were required to giveoaths contrary to the Christian faith.33 The attendant suspicionagainst hired assistants and advocates remained in the Empire; menshould rely only on themselves or their friends to secure redress.-Because disinterested advocates possessed special skills in legal mat-ters, they would presumably manipulate the legal process, therebyprecipitating erroneous judgments.3 5came to practice advocacy as a livelihood, a limited fee, known as a "honorarium,"was permitted. Id. at 53-54.27. Radin, supra note 13, at 52.28. Id. at 53. Calumniators also include those who in English law were known asmaintainers, champertors, and barrators. Id. See infra note 51.29. See J. THoMAS, TExTBOOK oF Rosi LAw 373 n.2 (1976); Radin, supra note13, at 53.30. The Theodosian Code (an official collection of imperial statutes beginningwith Constantine I) defines the "calumniator" as follows:(1) those who without authorization bring actions (in the name of another)with which they have no concern; (2) those who after losing their suit by ajust determination, attempt to bring the action again; (3) those who seek orfile claims in court for property, that does not belong to them; (4) thosewho under the pretense of aiding the Treasury, plan to acquire the propertyof other persons and do not suffer law-abiding citizens to be at peace; (5)those who by bringing false charges against an innocent person undertaketo arouse the wrath of the governmental authority against them. Such per-sons are all driven into exile.Radin, supra note 13, at 53 (quoting COD Ta 9.39.3).The parties to litigation were required to swear an oath of calumnia, to wit, that theproceedings were "genuine and not collusive." J. THouas, supra note 29, at 120.31. See Radin, supra note 13, at 54.32. Id. at 56; Francis & Johnson, The Emperor's Old Clothes: Piercing the Bar'sEthical Veil, 13 WILAhmr L.J. 221, 223-24 (1977).33. Radin, supra note 13, at 56. Justinian precluded ministers of the church frompleading in the courts, regardless of their personal interest or the nature of the case.R. PoUND, supra note 25, at 65.34. See Radin, supra note 13, at 56.35. Id.1990]374 MAINE LAW REVIEW [Vol. 42:369B. The Lawyer in English HistoryIn England, as in early Greece and Rome, e representation in liti-gation developed slowly and was regarded as exceptional.3 7 Again, itwas customary for litigants in the neophyte English system to taketheir friends and advisors with them to trial.38 The perception thatlawsuits were intrinsically evil also carried over to medieval Eng-land.36 In fact, trial in medieval England was itself perilous, 40 typi-cally being by ordeal,41 by compurgation"2 or by battle.43 For exam-ple, in trial by battle, one would swear to the truth of his cause and,in personal combat, seek to prove the truth of his position.44 Thisprocess was not devoid of representation, however, for in certain sit-uations, a person could retain a champion to intervene on his be-half.45 This champion, who would intervene for hire, maintained a36. See supra notes 13-35 and accompanying text.37. See R POUND, supra note 25, at 79.38. See H. DRINKER, LEGAL ETHICS 12 (1953). As in Roman law, a "friend" whowas of obvious help in the litigation received a reward in the form of an honorarium,although he could not sue for his fees. Id. at 13; supra note 26.39. Radin, supra note 13, at 57-58. See supra note 32 and accompanying text.40. Radin, supra note 13, at 58.41. Historically, oath, which went to "the justice of the claim or the defense as awhole" as opposed to "the truth of specific fact," was "the primary mode of proof." F.POLLOCK & F. MAMrAND, supra note 13, at 39. A duly made oath, whereby a desig-nated number of persons were required to swear on a litigant's behalf, was conclusive.An accused who failed to qualify for the oath was required to undergo trial by ordeal.Id. The ordeal was conceived as the "judgment of God," whereby a solemn ritual,involving fire and water, was felt to reveal the truth. F. MAITLAND & F. MONTAOUE,supra note 13, at 48. In the former, the ordeal of fire, one had to lift and carry a onepound red-hot iron three steps. The hand was then wrapped in cloth and examinedthree days later. If the hand was blistered, rather than clean, it was fatal. Id. at 49. Inthe latter, the ordeal of water, one who sunk was considered safe, one who floated waslost. Id. at 48-49.42. Compurgation was a mode of proof whereby an accused person could swear adenial of the accusation and bring forward a group of oath-helpers (compurgators) toswear that the accused's oath was "clean and without perjury." L. CURZON, ENGLISHLEGAL HISTORY 13, 76 (2d ed. 1979). The oath was formalized; if one oath-helper useda wrong word, "the oath was said to have 'burst' and the case was lost." Id. at 76.43. Trial by battle, or judicial combat, was not a native English institution butwas an ordeal imported by the Norman conquerors. F. MAITLAND & F. MONTAGUE,supra note 13, at 49. An ordinance of William the Conqueror enabled Englishmen touse or decline trial by battle in their lawsuits with Normans. F. POLLACK & F.MArrLAND, supra note 13, at 39.44. F. MAITLAND & F. MONTAGUE, supra note 13, at 49-50. In trial by battle, theaccuser undertook to "prove by his body" the truth of his charge; if he could not dothis by nightfall, he was deemed a perjurer. The object of the fight was not to kill hisopponent, but to make him cry "craven." Id. at 50.45. L. CURZON, supra note 42, at 77. Initially, champions were used where theappellant was blind, disabled, elderly, or an infant, woman, or priest. Id. Over time,however, champions became freely used by every class of litigant. Some entities per-manently maintained them. See 1 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 309(3d ed. 1922).SOLICITATION BY LAWYERSfiction of a personal connection with the proceedings. He purportedto serve as a witness, asserting that he knew the truth of the causefor which he was fighting.46 The professional champion, motivatedpurely by monetary reward, represented an unwarranted and wickedinterference in a legal proceeding and was disdained by society.'7As trial by battle became obsolete,48 and the English judicial ma-chinery evolved and became more complicated, legal expertise lay inthe hands of a relatively small number of persons. 49 A class of legaladvisors who were experienced and competent in legal technicalitiesdeveloped from the friends and advisors who earlier had accompa-nied litigants to trial50 These legal specialists, however, were stilllooked upon with suspicion. This mistrust resulted not only fromthe ancient prejudice against representation, but also from the per-ception that these advocates encouraged resort to the law in generaland vexatious, profit-seeking lawsuits in particular. 1 Notwithstand-ing this attitude, as the legal system developed in England and asskill and learning were required in the process of the law, resort tothese practitioners, who now openly acted on behalf of others, natu-rally followed.2 It is from this medieval period53 that we see thelegal profession as we know it today begin to take shape. In fact, theorigin of the law as a profession in England can be traced to this46. 1 W. HOLDSWORTH, supra note 45, at 309 n. 4. Champions were officially recog-nized by the Statute of Westminster I in 1275; the need to "swear as to their ownknowledge of the cause" for which they were hired to maintain was thereby elimi-nated. Id. at 309.47. Radin, supra note 13, at 59.48. Trial by battle was not officially abolished in England until 1819, although bythen, the practice had long become obsolete. See L CURZON, supra note 42, at 51, 77.49. Radin, supra note 13, at 59.50. See H. DRINKER, supra note 38, at 79.51. Radin, supra note 13, at 59. In medieval England, three types of interferencewith the course of justice were recognized: maintenance (helping another prosecute asuit), champerty (maintaining a suit in return for a financial interest in the outcome),and barratry (a continuing practice of maintenance or champerty). Zimroth, GroupLegal Services and the Constitution, 76 YALE L.J. 966, 969 (1967); Francis & John-son, supra note 32, at 222. Over time these interferences came to be viewed as law-yers' transgressions, purportedly because of a "fundamental distrust of legal proce-dure and of lawyers." Radin, supra note 13, at 66. However, the background againstwhich maintenance, champerty, and barratry emerged indicated that lawyers' inter-ference was not the target, but rather the interference by the person who employedthe lawyer. J. BAKER, Counsellors and Barristers, in THE LEGAL PROFESSION AND THECOMMON LAW 109-110 (1986); Radin, supra note 13, at 65. While lawyers were some-times involved as instruments of the misconduct, the prime movers of it were the"men of property who speculated in the results of litigation or. . .feudal lords whosupported an army of retainers." Id. at 67.52. See R. POUND, supra note 25, at 79-80. These practitioners, derived from theearly friends and advisors, were the forerunners of the barristers. H. DaNEa, supranote 38, at 12-13.53. See supra notes 59-66 and accompanying text for discussion of the Inns ofCourt.1990]MAINE LAW REVIEW [Vol. 42:369medieval period.5 As the legal system evolved during the thirteenthand fourteenth centuries, the law came to be regarded as a learnedprofession, along with medicine and theology.55 Members of the legalprofession were generally men from England's leading families" whotrained in the classics. 57 It was not characteristic for members of thelegal profession to be wholly dependent on their profession for theirlivelihood. Lawyers therefore commonly had little regard for thecompetition of the crafts.5"Lawyers trained at the Inns of Court, 59 which were societies of54. The formative period of the legal profession was from the reign of Edward I(1272) until the reign of Henry VI (1422). R. POUND, supra note 25, at 78.55. Gellhorn, The Abuse of Occupational Licensing, 44 U. CHI. L. REv. 6, 7 (1976).While theology, law, and medicine were at one time the learned professions, in lightof the unlearned past of the latter two, particularly in the United States, only thetheologians "are and always have been learned." The unlearned past of law andmedicine should remind us that "learning is an individual quality," not "inexorablypossessed by everyone who obtains professional status." Id. at 9. What entitles a per-son to be characterized as learned is the possession of wisdom as well as erudition,and what entitles a calling to be a learned profession is "when it is pursued prepon-derantly by persons who are well educated and wise." Id. at 10. But cf. infra notes 73-75 and accompanying text for a discussion of the lowering of professional standardsduring the nineteenth century in the United States.56. H. DRINKER, supra note 38, at 5 (1953).57. See Rubin, The Legal Web of Professional Regulation, in REGULATING THlEPROFESSIONS 29, 32 (1980). The ancient learned professions of law, theology, andmedicine were distinguishable from the craft and trade associations of the eleventhand twelfth centuries by demarcations of society, economy, and education. While itwas customary for members of the professions to train in the classics, vocational soci-eties traditionally engaged in elaborate apprenticeship programs. The special trainingthat was concomitant with each craft or profession generated solidarity among thevarious associations' memberships. Id. Licensing arose from these early organizations.See Gross, The Myth of Professional Licensing, Am. PSYCHOLOGIST 1009, 1011 (1978).Although viewed by some as a way to restrict individuals from freely pursuing occu-pations, the early regulatory structures nevertheless served to focus an entity's exper-tise, and thereby gave autonomy of control to the associations' individual practices.See generally M. FRIEDMAN, CAPITALISM AND FREEDOM, 138-44 (1962); Gross, supra at1010-11. Since that time, the adoption of a special set of rules to regulate membershas been a characteristic attributable to the professions. W. MOORE, THE PROFESSIONS:ROLES AND RULES 113-16 (1970).58. H. DRINKER, supra note 38, at 4-5. While the crafts and learned professionshad social, economic, and educational differences, there were no significant distinc-tions in the initial organization of these entities. See Rubin, supra note 57, at 32.59. The Inns of Court had powers of education, discipline, and government withinthe legal profession. R. POUND, supra note 25, at 88-89. The Benchers and Readerswho lectured at the Inns were the most prestigious of the members. It is from theformer group that the sergeants-at-law were chosen. The next grade of membershipwas the barristers, who could plead and argue cases, followed by inner barristers, whowere younger members not yet authorized to represent clients in the courts. Id. at 89.The Inns were self-governing societies that were products of the medieval spirit thatmanifested itself in trade guilds. W. WINDEYER, The Lawyers, in LECTURES ON LEGALHISTORY 137 (2d ed. 1957). However, the Inns of Court surpassed guilds in their or-ganization and discipline; they were similar to medieval universities. Id.SOLICITATION BY LAWYERSlawyers80 responsible for the education and admission of members tothe profession.61 In the English Inns of Court, the lawyers were fewin number and formed a close-knit group.62 Many of them regardedthe profession as a public service. 3 They refused to compete for cli-60. The term "lawyer" is generally associated with the "barrister." Within thelegal profession in England, a barrister is distinct from an attorney. While profes-sional attorneys began under the reign of Edward I, for the most part they did notstudy in, nor were they members of, the Inns of Court. Attorneys were admitted topractice and borne on the rolls of the common law courts. However, from the time ofthe seventeenth century, attorneys and barristers functioned as separate and distinctbranches of the profession. See R. PouNm. supra note 25, at 86-87; F. 1MArrz.M & F.MONTAGUE, supra note 13, at 94-97. Barristers were well organized and obtained amonopoly of certain desirable aspects of the practice of law. Attorneys, constitutingthe lower branch of the profession, were not as well organized and primarily wererelegated to drafting work. During the nineteenth century, Parliament consolidatedpractitioners other than barristers intm the classification of "solicitors," who, subjectto special privileges reserved for barristers, were entitled to practice law. Wickser,Bar Associations, 15 CORNELL LQ. 390, 392 n.4 (1930).61. By the twentieth century, the Inns of Court had ceased to be great educa-tional or disciplinary bodies; their primary function became the examination of stu-dents for admission to the upper branch of the profession. F. RoscoE. THE GROWrHOF ENGLISH LAW 219-20 (1911).62. See Francis & Johnson, supra note 32, at 223-24.63. The pursuit of a public service is considered a general characteristic of theprofessions. See P. PoUND, supra note 25, at 5; H. DRuNKER, supra note 38, at 5 ("Aduty of public service, of which the emolument is a by-product, and in which one mayattain the highest eminence without making much money" is a primary characteristicthat distinguishes the legal profession from business).The characteristics of a "profession" have been extensively discussed. See, eg.,Goode, Community Within A Community: The Professions, 22 Am Soc. Ray. 194(1957) ("profession" is community without physical locus); Greenwood, Attributes ofA Profession, Soc. WORK 45 (July 1957) ("professions" possess systematic theory, au-thority, community sanction, ethical codes, and culture). What purports to make aprofession a community are the following characteristics:(1) Its members are bound by a sense of identity. (2) Once in it, few leave,so that it is a terminal or continuing status for the most part. (3) Its mem-bers share values in common. (4) Its role definitions vis-a-vis both membersand non-members are agreed upon and are the same for all members. (5)Within the areas of communal action there is a common language, which isunderstood only partially by outsiders. (6) The community has power overits members. (7) Its limits are reasonably clear, though they are not physi-cal and geographical, but social. (8) Though it does not produce the nextgeneration biologically, it does so socially through its control over the selec-tion of professional trainees, and through its training process it sends theserecruits through an adult socialization process.Goode, supra, at 194 (citations omitted).One professor of law defines a professional as one who "employs intellectual andtechnical knowledge and skills that have been obtained by a substantial inve3tmentin education and training." Kissam, Antitrust Law, the First Amendment, and Pro-fessional Self-Regulation of Technical Quality, in REGULATING THE PROFESSIONS 143,144 (1980). An "ideal" professional is one who, along with developing a high degree ofknowledge, engages in a social service that is both essential and unique. D. CAMIPBELL.THE DocTORs, LAWYERS, M naS'rFjm CHRISTIAN ETHICS IN PROFESSIONAL PRA C CE 211990]MAINE LAW REVIEWents because of concern that to do so would destroy their intimacyand reduce them to the status of tradesmen." Furthermore, it wasunnecessary for lawyers to overtly seek business since there were fewlegal experts and many clients.65 Thus the principles of etiquetteand good taste,06 along with the existence of readily available busi-ness, appear to have tempered solicitation by lawyers during theformative period of the profession.C. The Lawyer in the United StatesIn colonial America, it was customary for some young men desir-ing to be members of the legal profession to return to England tostudy law at the Inns of Court.67 Due to their training and position(1980). Campbell adds:[The professional] must develop the ability to apply the special body ofknowledge that is unique to the professiofi[,] ... is part of a group that isautonomous and claims the right to regulate itself(,] . . . recognizes andaffirms a code of ethics[,] ... exhibits a strong self-discipline and acceptspersonal responsibility for actions and decisions.Id. at 22-24.Dean Roscoe Pound described a profession as "a group of men pursuing a learnedart as a common calling in the spirit of a public service-no less a public servicebecause it may incidentally be a means of livelihood.. . . Gaining a livelihood is inci-dental, whereas in a business or trade it is the entire purpose." R. POUND, supra note25, at 5.64. See Francis & Johnson, supra note 32, at 224.65. Id.66. See Note, Advertising, Solicitation and Legal Ethics, 7 VAND. L. REv. 677(1954).67. F. AUMANN, THE CHANGING AMERICAN LEGAL SYSTEM: SOME SELECTED PHASES32 (1969); H. DRINKER, supra note 38, at 19 n.34. Of the four great Inns ofCourt-Gray's Inn, Lincoln's Inn, Inner Temple, and Middle Temple-the latter issaid to have taken a leading part in the birth of the American nation. C. COMEOYS. ASUMMER SOJOURN AMONG THE INNS OF COURT 125 (1922). Five men from the colonieswho received their professional training at Middle Temple signed the Declaration ofIndependence (Edward Rutledge, Thomas Lynch, Jr., Thomas Heyward, Jr., ArthurMiddleton, and Thomas McKean), four additional Middle Templars were members ofthe Continental Congress that adopted the Articles of Confederation (Joseph Reed,John Dickinson, John Banister, and John Mathews), and five more men who receivedtraining in law at Middle Temple sat at Philadelphia in 1776 and signed the Consti-tution of the United States of America (William Livingston, Jared Ingersoll, JohnBlair, John Rutledge, and Charles Pinckney). Id. at 2-3. The collateral positions thatthese men held indicate the influence they had during the formative period of theRepublic:Edward Rutledge - Governor of South CarolinaThomas Heyward, Jr. - Judge in State of South CarolinaThomas McKean - Chief Justice and Governor of PennsylvaniaJoseph Reed - President of Pennsylvania's Supreme Executive CouncilJohn Dickinson - authored public letters signed "Pennsylvania Farmer"John Mathews - Chancellor and Governor of South CarolinaWilliam Livingston - Governor of New JerseyJared Ingersoll - Judge and Attorney General of PennsylvaniaJohn Blair - Justice of the United States Supreme Court[Vol. 42:369SOLICITATION BY LAWYERSin their communities, these men helped to establish high standardsof education and conduct for the legal profession upon their returnto America.6 8 As in England, the number of trained lawyers in colo-nial America was small. The factors that discouraged solicitationduring the formative period of the profession in England carriedover to the colonies.6 9In America, there was the widespread perception among the pub-lic that special privileges were accorded members of the profes-sions.70 Consequently, a hostility eventually developed toward theregulated professions, particularly the legal profession." Bar as-sociations, perceived as the exclusive and secret trade unions of aprivileged class were deemed to be undemocratic and un-Ameri-can.72 As a result, states enacted significant legislation detrimentalto the legal profession that lowered or eliminated qualifications ofcharacter, education, and training."3 In fact, some states enactedlaws maintaining the inherent and natural right of every voter ofgood moral character to practice law.74 Other states assured theircitizens the right of admission to practice law, following a brief pe-John Rutledge - Governor, Chancellor, and Chief Justice of South Carolina,Justice of the United States Supreme CourtCharles Pinckney - Governor of South Carolina and United States Ministerto SpainId.68. H. DINKER, supra note 38, at 19. A Professorship of Laws was established atWilliam and Mary College in 1779, at the College of Philadelphia (University ofPennsylvania) in 1790, and at Columbia College in 1793. The School of Judge Reeveof Litchfield, Connecticut was established in 1784. Under the Royall Bequest of 1781,the Royall Professorship of Law was established at Harvard in 1815. Wickser, supranote 60, at 393 n.5. While twenty-five of the fifty-six signers of the Declaration ofIndependence and thirty-one of the fifty-five members of the Constitutional Conven-tion were lawyers, a large number of the older and stronger lawyers were loyalists andleft the country or ceased to practice following the Revolution. L FR=m . A His-TORY OF A-sraucAN LAW 303 (2d ed. 1985); R. POUND, supra note 25, at 177-78.69. See supra notes 62-66 and accompanying text. Attorneys were to remain in"demure, discrete and decorous roles, according to traditional courtship rituals of thebar." Rhode, Solicitation, 36 J. LEGAL EDUC. 317, 317-18 (1986).70. See L FaEmAN, supra note 68, at 95; H. DRNKER, supra note 38, at 19.71. See IR DRINKER, supra note 38, at 19; Wickser, supra note 60, at 393; Youngand Hill, Professionalism: The Necessity for Internal Control, 61 T'p_. L Rxv. 205,207 (1988); Comment, Controlling Lawyers by Bar Associations and Courts, 5 HARv.C.R.-C.L. L Rv. 301, 303 (1970).72. H. DRnaKE, supra note 38, at 19.73. Id. See L. FREDmmAN, supra note 68, at 316-18; Comment, supra note 71, at303-304. "In the period immediately after the Civil War," the legal profession in theUnited States "reached its lowest ebb." H. DmRNKER, supra note 38, at 20.74. H. DflNKne, supra note 38, at 19. See, e.g., IND. CoNsT. art. 7, § 21 (1851)("Every person of good moral character, being a voter, shall be entitled to admissionto practice law in all Courts of justice.") (abrogated by general election of 1932); N.H.Rav. STAT. ANN. ch. 177, § 2 (1842) ("Any citizen of the age of twenty-one years, ofgood moral character, on application to the superior court shall be admitted to prac-tice as an attorney.").1990]MAINE LAW REVIEWriod of study.75During the nineteenth century, the bar in the United States wasessentially open. A large group of lawyers competed for business in-sufficient to accommodate their numbers.7 During this time, DavidHoffman published fifty "Resolutions in Regard to Professional De-portment, '77 the first American code of legal ethics.78 Noting thelack of professional community, and recognizing there was no realis-tic hope of effective external regulation, Hoffman sought to en-courage good behavior among lawyers by relying on individual moralpersuasion, rather than on proscriptive rules. 9 Also during this pe-riod, George Sharswood authored "An Essay on Professional Ethics"as an inspirational guide to the practicing bar, urging that highmoral principle was the foundation of professional dignity. 0 Shar-swood warned of "a horde of pettifogging, barratrous, money-mak-ing lawyers" and suggested that passivity and patience were a law-yer's cardinal virtues.8' He was in favor of "let[ting] business seekthe young attorney."82D. Guidelines and Rules Prohibiting SolicitationIn the latter part of the nineteenth century, leaders of the bar75. H. DRINKER, supra note 38, at 19. In 1860, only nine of thirty-nine states re-quired a definite, though nominal, period of preparation for admission to the bar. R.POUND, supra note 25, at 227-28. For instance, "[i]n Ohio the only requirement wasan attorney's certificate that the applicant had 'regularly and attentively studiedlaw.'" Id. at 229.76. See generally H. DRINKER, supra note 38, at 20; L. FRIEDMAN, supra Aote 68 at633-34; Matzko, The Best Men of the Bar: The Founding of the American Bar Asso-ciation, in THE NEW HIGH PRIESTS: LAWYERS IN POST-CIVIL WAR AMERICA 75, 77-78(1984).77. D. HOFFMAN, A COURSE OF LEGAL STUDY, ADDRESSED TO STUDENTS AND TIlEPROFESSION GENERALLY 752-75 (2d ed. 1846). The fifty "Resolutions in Regard to Pro-fessional Deportment" were published in 1836 as part of a general course of study onprofessional ethics for attorneys.78. See generally Kalish, David Hoffman's Essay on Professional Deportmentand the Current Legal Ethics Debate, 61 NEB. L. REV. 54, 58 (1982) ("This codedefined the role of the attorney as essentially that of an officer of the court.").79. Id. at 62.80. G. Sharswood, Essay on Professional Ethics, reprinted in XXXII REPORTS OPTHE AMERICAN BAR AssoCIATION 9, 55 (1907).81. Id. at 147-48, 168.82. Id. at 131. In addressing the problem of attracting business for the young at-torney, Sharswood further noted:[T]hough it (business) may come in slowly, and at intervals, and promise inits character neither fame nor profit, still, if he bears in mind that it is animportant part of his training that he should understand the business hedoes thoroughly, that he should especially cultivate, in transacting it, habitsof neatness, accuracy, punctuality, and despatch, candor toward his client,and strict honor toward his adversary, it may be safely prophesied that hisbusiness will grow as fast as it is good for him that it should grow ....Id. at 131-32.[Vol. 42:3691990] SOLICITATION BY LAWYERSattempted to stop the rampant commercialism in the as-yet unregu-lated legal profession. They began to reestablish standards of char-acter, education, and training within the profession.8 3 As a means tothis end, lawyers sought the reorganization of bar associationsthroughout the country.8 The Alabama State Bar Association for-mulated and adopted the first formal Code of Ethics 5 for the Amer-ican legal profession in 1887. As a general rule of guidance to theAlabama Bar, this Code stated that "[n]ewspaper advertisements,circulars and business cards, tending professional services to thegeneral public, are proper; but special solicitation of particular indi-viduals to become clients ought to be avoided."8The Alabama Code, along with Hoffman and Sharswood's works,served as a principal antecedent to the Canons of Professional Eth-ics,8' which the American Bar Association (ABA) promulgated andadopted in 1908. The Canons, subsequently adopted in whole or inpart throughout the United States,8 continued to denounce lawyersolicitation. However, where the Alabama Code condoned lawyer ad-83. H. DRINKER, supra note 38, at 20.84. Id.85. 118 Ala. XXI (1899). See H. DRINKER, supra note 38, at 23. The Code ofEthics formulated by the Alabama State Bar Association was based largely on Shar-swood's Professional Ethics and Hoffman's Resolutions. Id. at 23 n.7. See supra notes77-82. The Alabama Code of Ethics, as adopted, stresses the need for high moralprinciples and sets forth the duties of attorneys:1st. To support the constitution and laws of this State and the UnitedStates.2d. To maintain the respect due to courts of justice and judicial officers.3d. To employ, for the purpose of maintaining the causes confided to them,such means only as are consistent with truth, and never seek to mislead thejudges by any artifice or false statement of the law.4th. To maintain inviolate the confidence, and, at every peril to themselves,to preserve the secrets of their clients.5th. To abstain from all offensive personalities, and to advance no fact prej-udicial to the honor or reputation of a party or a witness, unless required bythe justice of the cause with which they are charged.6th. To encourage neither the commencement nor continuance of an actionor proceeding from any motive of passion or interest.7th. Never to reject, for any consideration personal to themselves, the causeof the defenseless and oppressed.118 Ala. at XXIII-XXIV.Focusing on the attorney's duties, the Alabama State Bar Association adopted fifty-six general rules to serve as guidance for its members. Id. at XKIV-XXXIV.86. 118 Ala. at XXVII (Rule 16).87. CANON OF PROFESSIONAL ETMcs (1908); H. DRiNKER, supra note 38, at 23; W.TRUMBuLL, MATERIALS ON Tim LAwYFER's PROFESSIONAL REsPONSaILnr 4 n.2 (1957).88. See H. DRINKER, supra note 38, at 25. Each state operates as a separate entity,having its own rules that govern the lawyers of its jurisdiction. In addition, somestates have special statutes that govern the conduct of lawyers. As a general practice,the individual states, with some modification, adopt and implement the ethics rulesproposed by the ABA. See generally NATIONAL REPORTER ON LEGAL EThics AND PRO-FESSIONAL RESPONSIBILITY (D. Lubin ed. 1989).MAINE LAW REVIEW [Vol. 42:369vertising, the Canons condemned it. 9 In a blanket provision, the Ca-nons asserted that "solicitation of business by circulars or advertise-ments, or by personal communications, or interviews, not warrantedby personal relations, is unprofessional." 90 The ABA amended theCanons numerous times during the next six decades; however, theproscriptions against advertising and solicitation remained essen-tially intact.91In 1969, the ABA replaced the Canons with the Model Code ofProfessional Responsibility."' The Model Code, as initially passed,89. See supra notes 90-91 and accompanying text.90. CANONS OF PROFESSIONAL ETHICS Canon 27 (1908). Canon 27, as adopted,stated:The most worthy and effective advertisement possible, even for a younglawyer, and especially with his brother lawyers, is the establishment of awell-merited reputation for professional capacity and fidelity to trust. Thiscannot be forced, but must be the outcome of character and conduct. Thepublication or circulation of ordinary simple business cards, being a matterof personal taste or local custom, and sometimes of convenience, is not perse improper. But solicitation of business by circulars or advertisements, orby personal communications, or interviews, not warranted by personal rela-tions, is unprofessional. It is equally unprofessional to procure business byindirection through touters of any kind, whether allied real estate firms ortrust companies advertising to secure the drawing of deeds or wills or offer-ing retainers in exchange for executorships or trusteeships to be influencedby the lawyer. Indirect advertisement for business by furnishing or inspir-ing newspaper comments concerning causes in which the lawyer has beenengaged, or concerning the manner of their conduct, the magnitude of theinterests involved, the importance of the lawyer's positions, and all otherlike self-laudation, defy the traditions and lower the tone of our high call-ing, and are intolerable.Id. See also H. DRINKER, supra note 18, at 316 n.6.91. A later version of Canon 27 stated:It is unprofessional to solicit professional employment by circulars, adver-tisements, through touters or by personal communications or interviews notwarranted by personal relations. Indirect advertisements for professionalemployment such as furnishing or inspiring newspaper comments, or pro-curing his photograph to be published in connection with causes in whichthe lawyer has been or is engaged or concerning the manner of their con-duct, the magnitude of the interest involved, the importance of the lawyer'sposition, and all other like self-laudation, offend the traditions and lowerthe tone of our profession and are reprehensible; but the customary use ofsimple professional cards is not improper.CANONS OF PROFESSIONAL ETHICS, Canon 27 (1940).See also H. DRINKER, supra note 38, at 316 n.6. Also incorporated within the bodyof Canon 27 was language relating to information permissible for inclusion in "lawlists" and specific designations for admiralty and patent lawyers. Id.92. See MODEL CODE OF PROFESSIONAL RESPONSIBILITY, Preliminary Statement(1969) [hereinafter MODEL CODE]. A consensus had developed among the bar that theCanons were incomplete and unorganized, and failed to "recognize the distinctionbetween [] the inspirational and the prescriptive." See Wright, The Code of Profes-sional Responsibility: Its History and Objectives, 24 ARK. L. REV. 1, 5 (1970). TheModel Code was composed of three parts: 1) Canons - concise statements settingSOLICITATION BY LAWYERScontained disciplinary rules prohibiting advertising and solicitationthat were similar to the proscriptions in the Canons. 3 While theforth the basic duty of lawyers; 2) Ethical Considerations - statements of activity andconduct to which practitioners should aspire; 3) Disciplinary Rules - statements set-ting forth minimum standards of conduct that must be met or a lawyer may be sub-ject to disciplinary action. MODEL CODE, supra, Preliminary Statement (1969). Thethree parts of the Code are separate but interrelated, serving "both as an inspira-tional guide" and "as a basis for disciplinary action" when minimum standards arenot met. Id.93. MODEL CODE, supra note 92, DR 2-101 to 2-105 (1969). The Disciplinary Rulesof the Model Code provided:DR 2-101 Publicity in General(A) A lawyer shall not prepare, cause to be prepared, use, or participate inthe use of, any form of public communication that contains professionallyself-laudatory statements calculated to attract lay clients; as used herein,"public communication" includes, but is not limited to, communication bymeans of television, radio, motion picture, newspaper, magazine, or book.(B) A lawyer shall not publicize himself, his partner, or associate as a law-yer through newspaper or magazine advertisements, radio or television an-nouncements, display advertisements in city or telephone directories, orother means of commercial publicity, nor shall he authorize or permitothers to do so in his behalf ....DR 2-102 Professional Notices, Letterheads & Offices(A) A lawyer or law firm shall not use or participate in the use of profes-sional cards, professional announcement cards, office signs, letterheads, orsimilar professional notices or devices, except that the following may beused if they are in dignified form:(1) A professional card of a lawyer identifying him by name andas a lawyer, and giving his addresses, telephone numbers, thename of his law firm, and any information permitted under DR 2.105. A professional card of a law firm may also give the names ofmembers and associates. Such cards may be used foridentification.(2) A brief professional announcement card stating new orchanged associations or addresses, change of firm name, or similarmatters pertaining to the professional offices of a lawyer or lawfirm, which may be mailed to lawyers, clients, former clients, per-sonal friends, and relatives.DR 2-103 Recommendation of Professional Employment(A) A lawyer shall not recommend employment, as a private practitioner, ofhimself, his partner, or associate to a non-lawyer who has not sought hisadvice regarding employment of a lawyer.(13)... a lawyer shall not compensate or give anything of value to a personor organization to recommend or secure his employment by a client, or as areward for having made a recommendation resulting in his employment bya client.(C) A lawyer shall not request a person or organization to recommend em-ployment, as a private practitioner, of himself, his partner, or associate.DR 2-104 Suggestion of Need of Legal Services(A) A lawyer who has given unsolicited advice to a layman that he shouldobtain counsel or take legal action shall not accept employment resultingfrom that advice.1990]MAINE LAW REVIEWModel Code would eventually permit limited advertising,9' any em-Id.The Code also incorporated disciplinary rules relating to lawyer identification, refer-ral services, activities designed to educate laymen and specialty practice. Id.94. MODEL CODE, supra note 92, DR 2-101 (1974). Model Code DR 2-101 was lateramended to allow advertising, by explicitly designating information a lawyer couldinclude in a publication regarding his services:DR 2-101 Publicity(A) A lawyer shall not, on behalf of himself, his partner, associate or anyother lawyer affiliated with him or his firm, use or participate in the use ofany form of public communication containing a false, fraudulent, mislead-ing, deceptive, self-laudatory or unfair statement or claim.(B) In order to facilitate the process of informed selection of a lawyer bypotential consumers of legal services, a lawyer may publish or broadcast,subject to DR 2-103, the following information in print media distributed orover television or radio broadcast in the geographic area or areas in whichthe lawyer resides or maintains his offices or in which a significant part ofthe lawyer's clientele resides, provided that the information disclosed bythe lawyer in such publication or broadcast complies with DR 2-101(A), andis presented in a dignified manner:(1) Name, including name of law firm and names of professionalassociates; addresses and telephone numbers;(2) One or more fields of law in which the lawyer or law firm prac-tices, a statement that practice is limited to one or more fields oflaw, or a statement that the lawyer or law firm specializes in aparticular field of law practice, to the extent authorized under DR2-105;(3) Date and place of birth;(4) Date and place of admission to the bar of state and federalcourts;(5) Schools attended, with dates of graduation, degrees and otherscholastic distinctions;(6) Public or quasi-public offices;(7) Military service;(8) Legal authorships;(9) Legal teaching positions;(10) Memberships, offices, and committee assignments, in barassociations;(11) Membership and offices in legal fraternities and legalsocieties;(12) Technical and professional licenses;(13) Memberships in scientific, technical and professional associa-tions and societies;(14) Foreign language ability;(15) Names and addresses of bank references;(16) With their written consent, names of clients regularlyrepresented;(17) Prepaid or group legal services programs in which the lawyerparticipates;(18) Whether credit cards or other credit arrangements areaccepted;(19) Office and telephone answering service hours;(20) Fee for an initial consultation;(21) Availability upon request of a written schedule of fees and/or(Vol. 42:369SOLICITATION BY LAWYERSployment that resulted from "in-person unsolicited advice to alayperson that he should obtain counsel or take legal action" sub-jected a lawyer to discipline. 5In 1983, the ABA adopted the Model Rules of Professional Con-duct as the alternative to the Model Code. 6 The Model Rules en-an estimate of the fee to be charged for specific services;(22) Contingent fee rates subject to DR 2-106(C), provided thatthe statement discloses whether percentages are computed beforeor after deduction of costs;(23) Range of fees for services, provided that the statement dis-closes that the specific fee within the range which will be chargedwill vary depending upon the particular matter to be handled foreach client and the client is entitled without obligation to an esti-mate of the fee within the range likely to be charged, in print sizeequivalent to the largest print used in setting forth the feeinformation;(24) Hourly rate, provided that the statement discloses that thetotal fee charged will depend upon the number of hours whichmust be devoted to the particular matter to be handled for eachclient and the client is entitled to without obligation an estimateof the fee likely to be charged, in print size at least equivalent tothe largest print used in setting forth the fee information;(25) Fixed fees for specific legal services, the description of whichwould not be misunderstood or be deceptive, provided that thestatement discloses that the quoted fee will be available only toclients whose matters fall into the services described and that theclient is entitled without obligation to a specific estimate of thefee likely to be charged in print size at least equivalent to thelargest print used in setting forth the fee information.Id.95. Id. at DR 2-104(A) & EC 2-3 (1980).96. The Model Code was criticized as being irrelevant, ambiguous, and contradic-tory. See Kutak, Model Rules: Law For Lawyers or Ethics For the Profession, 38REc. AB. Crry N.Y. 140, 142-43 (1983); Morgan, The Evolving Concept of Profes-sional Responsibility, 90 HARv. L REv. 702 (1977). See also Moore, Conflicts of Inter-est in the Simultaneous Representation of Multiple Clients: A Proposed Solution tothe Current Confusion and Controversy, 61 TEx. L Rav. 211, 212 (1982). During the1970's, members of the bar began to feel that the tri-partite structure of the ModelCode was confusing and that the Code failed to address certain important issues. SeeG. HAzARD & W. HODES, 1 Ta LAw oF LAwY EiNG xxxv-xxxviii (Supp. 1989). Cf.supra note 92 for analogous criticism of the earlier Canons of Professional Ethics.Some Model Code provisions were inconsistent with various federal and state consti-tutional provisions. See, e.g., G. HAZARD & W. HODES, supra, at xxxv. This situationled the ABA to appoint a special commission in 1977 to examine the Model Code, anaction that eventually resulted in the adoption of the Model Rules in 1983. Id. atxxxv-xxxviii. According to the late Robert J. Kutak, former Chairman of the ABACommission on Evaluation of Professional Standards, the Model Rules define the lawof lawyering and seek to guide the conscientious lawyer to balance competing dutiesin the professionally responsible representation of clients. See generally Kutak, TheLaw of Lawyering, 22 WAsHBuRN LJ. 413 (1983). Criticism and defense over substan-tive provisions, as well as scrutiny of the lawyer's role and the adversary system as anentity, preceded the final draft of the Rules. 1 G. HAZARD & W. HODES, supra at xxxv.At the time of the writing of this Article, more than half of the states have adopted1990]MAINE LAW REVIEW [Vol. 42:369larged the sphere of lawyer advertising"7 but continued the rebukeagainst in-person solicitation.98 The Rules provided that "[a] lawyermay not solicit professional employment from a prospective clientwith whom the lawyer has no family or prior professional relation-ship, by mail, in-person or otherwise, when a significant motive forthe lawyer doing so is the lawyer's pecuniary gain. ' ' 9 This proscrip-the Model Rules either in their entirety or with some modification. See generallyNATIONAL REPORTER ON LEGAL ETHICS AND PROFESSIONAL RESPONSIBILITv (D. Lubined., 1989).97. MODEL RULES OF PROFESSIONAL CONDUCT Rule 7.2 (1983) [hereinafter MODEL,RULES]. Rule 7.2 provided:Rule 7.2 Advertising(a) Subject to the requirements of Rule 7.1, a lawyer may advertise servicesthrough public media, such as a telephone directory, legal directory, news-paper or other periodical, outdoor, radio or television, or through writtencommunication not involving solicitation as defined in Rule 7.3.(c) A lawyer shall not give anything of value to a person for recommendingthe lawyer's services, except that a lawyer may pay the reasonable cost ofadvertising or written communications permitted by this rule ....Rule 7.1 provided:Rule 7.1 Communications Concerning a Lawyer's ServicesA lawyer shall not make a false or misleading communication about thelawyer or the lawyer's services. A communication is false or misleading if it:(a) contains a material misrepresentation of fact or law, or omitsa fact necessary to make the statement considered as a whole notmaterially misleading;(b) is likely to create an unjustified expectation about results thelawyer can achieve, or states or implies that the lawyer canachieve results by means that violate the rules of professionalconduct or other law; or(c) compares the lawyer's services with other lawyers' services,unless the comparison can be factually substantiated.Id.98. MODEL RULES, supra note 97, Rule 7.3. Rule 7.3 of the Model Rules provided:Rule 7.3 Direct Contact With Prospective ClientsA lawyer may not solicit professional employment from a pro-spective client with whom the lawyer has no family or prior pro-fessional relationship, by mail, in-person or otherwise, when a sig-nificant motive for the lawyer's doing so is the lawyer's pecuniarygain. The term "solicit" includes contact in person, by telephoneor telegraph, by letter or other writing, or by other communica-tion directed to a specific recipient, but does not include lettersaddressed or advertising circulars distributed generally to personsnot known to need legal services of the kind provided by the law-yer in a particular matter, but who are so situated that theymight in general find such services useful.Id.99. Id. In defining the term "solicit," the Rules specifically exclude "persons notknown to need legal services of the kind provided by the lawyer in a particular mat-ter, but who are so situated that they might in general find such services useful." Id.The Model Code, supra note 92, as originally implemented, excluded general mailingsby lawyers from the definition of "solicitation," but continued to condemn targeted1990] SOLICITATION BY LAWYERStion against solicitation was later softened, however, by a 1989amendment which, while still forbidding a lawyer from engaging inin-person or live telephone solicitation, permitted written or re-corded solicitation, provided the contents were neither deceptive norinvolved coercion, duress or harassment.100mailings as prohibited conduct.100. Id. The ABA redrafted Model Rule 7.3 following the United States SupremeCourt's decision in Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988). See infranotes 200-214 and accompanying text. The Rule now adopts a resolution that hadbeen promoted in drafts of the 1983 Model Rules but ultimately was rejected.Model Rule 7.3, as amended in 1989 states:RULE 7.3 Direct Contact With Prospective Clients(a) A lawyer shall not by in-person or live telephone contactsolicit professional employment from a prospective client withwhom the lawyer has no family or prior professional relationshipwhen a significant motive for the lawyer's doing so is the lawyer'specuniary gain.(b) A lawyer shall not solicit professional employment from aprospective client by written or recorded communication or by in-person or telephone contact even when not otherwise prohibitedby paragraph (a), if-(1) the prospective client has made known to the lawyera desire not to be solicited by the lawyer, or(2) the solicitation involves coercion, duress orharassment.(c) Every written or recorded communication from a lawyersoliciting professional employment from a prospective clientknown to be in need of legal services in a particular matter, andwith whom the lawyer has no family or prior professional rela-tionship, shall include the words "Advertising Material" on theoutside envelope and at the beginning and ending of any recordedcommunication.(d) Notwithstanding the prohibitions in paragraph (a), a lawyermay participate with a prepaid or group legal service plan oper-ated by an organization not owned or directed by the lawyerwhich uses in-person or telephone contact to solicit membershipsor subscriptions for the plan from persons who are not known toneed legal services in a particular matter covered by the plan.MODEL RuLEs, supra note 97, at Rule 7.3.In addition to the amendment of Model Rule 7.3, Model Rule 7.2 was revised toreflect the changes in the former. Model Rule 7.2, as amended, states:Rule 7.2 Advertising(a) Subject to the requirements of rule 7.1 and 7.3, a lawyer may advertiseservices through public media, such as a telephone directory, legal direc-tory, newspaper or other periodical, outdoor advertising, radio or television,or through written or recorded communication.(b) A copy or recording of an advertisement or written communication shallbe kept for two years after its last dissemination along with a record ofwhen and where it was used.(c) A lawyer shall not give anything of value to a person for recommendingthe lawyer's services, except that a lawyer may pay the reasonable cost ofadvertisements or communications permitted by this rule and may pay theusual charges of a not-for-profit lawyer referral service or other legal serviceMAINE LAW REVIEWWhile the current rules that prescribe behavior for members ofthe legal profession continue to prohibit the direct solicitation ofbusiness by lawyers, 101 one may question whether an absolute banon in-person and live telephone solicitation is an impermissible re-striction violative of the first amendment.102 As this Article willdemonstrate, the United States Supreme Court has significantlyeroded the traditional ban on lawyer solicitation, as well as its ra-tionale. However, the question remains whether the Court hasdrawn an arbitrary line between that solicitous conduct it considersproper and that it considers improper. In focusing on the currentproscriptions against solicitation, it is instructive to review how theSupreme Court confronted these issues and how the logical exten-sion of its cases undermines the continuing bans on in-personsolicitation.III. THE CONSTITUTIONAL CONTEXTIn order to examine properly how courts have influenced the banson lawyer solicitation, solicitation must be viewed in conjunctionwith lawyer advertising cases. Advertising is a group communicationthat informs the public that a lawyer is available to perform ser-vices.103 Solicitation, conversely, is a personal appeal directed towarda prospective client.10 4A. Commercial Speech Unprotected Under First AmendmentDuring the first part of the twentieth century, the Canons imple-mented by the self-regulated legal profession,105 which denouncedboth solicitation and advertising by lawyers, 0 6 remained intact andvirtually unchallenged. Since lawyer advertising and solicitationconstituted a form of commercial speech,'0 7 they were thought to fallorganization.(d) Any communication made pursuant to this rule shall include the nameof at least one lawyer responsible for its content.Id. at Rule 7.2 (1989).101. Id. at Rule 7.3.102. See infra notes 224-40 and accompanying text.103. See Maute, Scrutinizing Lawyer Advertising and Solicitation Rules UnderCommercial Speech and Antitrust Doctrine, 13 HASTINGS CONsT. L.Q. 487, 495(1986).104. Id.105. The law is considered a self-regulated profession. Rubin, supra note 57, at32.106. See supra notes 87-91 and accompanying text.107. Commercial speech is "speech of any form that advertises a product or ser-vice for profit or for business purpose." J. NOWAK, R. ROTUNDA & J. YOUNG, CONSTITU-TIoNAL LAW 923 (2d ed. 1983). But cf. Note, Constitutional Law-First AmendmentProtection of Commercial Speech - Bolger v. Youngs Drug Products Corp., 32 KAN.L. REV. 679, 685 (1984) (question of "what is commercial speech?" never definitivelyanswered by United States Supreme Court; it is defined differently in each decision);[Vol. 42:369SOLICITATION BY LAWYERSoutside the protection given by the first amendment.0 8Prior to the mid-1970s, the United States Supreme Court ex-cluded commercial speech from the purview of constitutional protec-tion.1 9 The Court intimated that the commercial motivation of theadvertiser, rather than the content of the speech, rendered commer-cial speech undeserving of protection under the first amendment.'The Court acknowledged that states and municipalities "may notunduly burden or proscribe" the freedom of "communicating infor-mation and disseminating opinion," but stated that "the Constitu-tion imposes no such restraint on government as respects purelycommercial advertising.""'Despite this wholesale exclusion of commercial speech from firstamendment protection, the Court continued to address cases dealingwith potential, limited constitutional protection of some forms ofcommercial speech. However, in these later cases, the content of theNote, First Amendment Protection for Commercial Advertising: The New Constitu-tional Doctrine, 44 U. CH. L REv. 205, 234 (1976) (commercial speech definitionshould be narrow to "assure that the reduction in first amendment protection af-forded commercial advertising does not endanger important interests.").108. See infra notes 109-16 and accompanying text for discussion of the develop-ment of early commercial speech analysis in the United States Supreme Court.109. See KAUPER & BEYrAGH, CONSTrTUTIONAL LAW 1280 (5th ed. 1980).110. The idea that commercial speech is not entitled to first amendment protec-tion arose in the United States Supreme Court decision in Valentine v. Chrestensen,316 U.S. 52 (1942). A New York sanitation ordinance prohibited the distribution ofcommercial or business advertising. The law was challenged by an individual whoowned a submarine that he displayed to the public for an admission charge.Chrestensen distributed handbills advertising his submarine, including a messagethereon protesting New York City's refusal to allow him to moor his ship at a citywharfage facility. Id. at 52-53. The Court rejected Chrestensen's claim that the regu-lation impinged on his right to comment on a matter of public interest, declaring hisaction was a subterfuge to circumvent the ordinance. Id. at 55. The Court stated thatthe ordinance was lawfully invoked because Chrestensen was attempting "to use thestreets of New York by distributing commercial advertising." Id. See also Breard v.Alexandria, 341 U.S. 622, 641-45 (1951) (rejecting first amendment challenge to pro-hibition on commercial door-to-door sales of magazine subscriptions, without consentof homeowner).111. Valentine v. Chrestensen, 316 U.S. at 54. Cf. Stoltenberg & Whitman, DirectMail Advertising by Lawyers, 45 U. Prrr. L REv. 381, 385 (1984) (Chrestensen didnot entirely eliminate protection for commercial speech; no authority exists for legis-lative curbing of even "purely commercial advertising" in absence of competing pub-lic interest). In a series of cases decided in 1943, the Supreme Court held ordinancessimilar to those in Chrestensen to be invalid when applied to Jehovah's Witnesses.Jamison v. Texas, 318 U.S. 413, 417 (1943) (states can prohibit use of streets fordistribution of purely commercial leaflets but may not prohibit distribution of hand-bills in pursuit of clearly religious activity); Murdock v. Pennsylvania, 319 US. 105,111 (1943) (invalidated ordinance prohibiting unlicensed solicitation of business; sell-ing, rather than donating, religious literature does not transform evangelism intocommercial enterprise); Martin v. City of Struthers, 319 U.S. 141, 149 (1943) (invali-dated ordinance forbidding door-to-door distribution of handbills because ordinanceimpermissibly restricted speech that was not commercial advertising).1990]MAINE LAW REVIEWspeech, rather than the motivation behind the speech, began to as-sume a greater role in the analysis. In determining whether speechwas commercial, the Court distinguished purely commercial adver-tisements that merely proposed a business transaction from adver-tisements that expressed an editorial position on matters of social orpolitical concern."' Therefore, the mere fact that speech appearedas a paid advertisement did not necessarily render it commercial orconstitutionally unprotected. 113 This content-based analysis re-quired a case-by-case balancing; a state may not deny speech firstamendment protection simply by denoting it as commercial."' Thevalue of commercial speech to the marketplace required weighingthe first amendment interest at stake against the governmental in-terest purportedly advanced by the regulation." 5 In making this as-sertion the Court maintained that an advertisement, "like all publicexpression, may be subject to reasonable regulation that serves a le-gitimate public interest.""'B. Virginia Pharmacy: First Amendment Protection forCommercial SpeechVirginia State Board of Pharmacy v. Virginia Citizens ConsumerCouncil, Inc.,"7 decided in 1976, was the first of several UnitedStates Supreme Court decisions to declare that commercial speech isentitled to partial first amendment protection because of its infor-112. Compare New York Times Co. v. Sullivan, 376 U.S. 254, 266 (1964) (adver-tisement of civil rights organization that communicated information vital to publicinterest deemed worthy of constitutional protection) with Pittsburgh Press Co. v.Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 384-85 (1973) (although"speech is not rendered commercial by the mere fact that it relates to an advertise-ment," help wanted ads divided into sex-designated columns are unprotected com-mercial speech, even though supervised under the direction of the media).113. See Bigelow v. Virginia, 421 U.S. 809, 818 (1975) (statute making it misde-meanor to encourage procurement of abortions by advertisement infringes protectedfirst amendment speech).114. Id. at 826. The Court noted that the advertisement at issue did more thanpropose a commercial transaction; the speech communicated information of wide-spread public and constitutional interest. Id. at 822.115. Id. at 826. In writing for the Bigelow majority, Justice Blackman noted thatthe Chrestensen case did not constitute "authority for the proposition that all stat-utes regulating commercial advertising are immune from constitutional challenge."Id. at 820. Previously, a number of justices had expressed doubts about the viabilityof Chrestensen. See Lehman v. City of Shaker Heights, 418 U.S. 298, 314-15, 314 n.6(1974) (Brennan, J., dissenting); Pittsburgh Press Co. v. Pittsburgh Comm'n onHuman Relations, 413 U.S. at 401 (Stewart, J., dissenting). Justice Douglas criticizedthe Chrestensen opinion as "casual, almost offhand." Cammarano v. United States,358 U.S. 498, 514 (1959) (Douglas, J., concurring). Douglas later called the decision"ill-conceived." Dun & Bradstreet, Inc. v. Grove, 404 U.S. 898, 905 (1971) (Douglas,J., dissenting from denial of certiorari).116. Bigelow v. Virginia, 421 U.S. at 826.117. 425 U.S. 748 (1976).[Vol. 42:369SOLICITATION BY LAWYERSmational value to individual consumers and the general public.'"Addressing the issues of commercial speech and the regulation ofprofessionals, the Court invalidated a Virginia statute that forbadelicensed pharmacists from advertising the prices of prescriptiondrugs." 9 The Court noted that pharmacists had a valid economicinterest in the unrestricted advertising of prescription drugs"' andthat consumers had a strong interest in the uninhibited flow of com-mercial information. 2' Weighed against these interests was thestate's interest in maintaining "a high degree of professionalism"among pharmacists, which ultimately resulted in the protection ofconsumer health.122 The Court observed that an advertising ban didnot ensure professionalism. 23 The actual effect of the ban was tokeep the state's consuming public ignorant of certain costs.12'Therefore, the consuming public's first amendment interest in thefree flow of truthful information about a lawful commercial activityoutweighed the state's asserted interest in maintaining professional-ism among licensed pharmacists. 25 The Court held that a state may118. Id. at 754-65. Since granting commercial speech first amendment protection,the Court has struggled to define its constitutional status. See generally Lively, TheSupreme Court and Commercial Speech. New Words with an Old Message, 72 MwNN.L REV. 289 (1987).119. Id. at 773. The Court had to determine whether the communication "I willsell you the X prescription drug at the Y price," which lacked any editorial positionon a social or political issue, lay -utside the protection of the first amendment. Id. at761. With respect to this commrcial information, the Court noted that the particularconsumer's interest in such commercial information "may be as keen, if not keener byfar, than his interest in the day's most urgent political debate." Id. at 763.120. Id. at 762 (although "the advertiser's interest is a purely economic one," thisfact "hardly disqualifies him from protection under the First Amendment"). Cf.supra note 109.121. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425U.S. at 763-64 ("Those whom the suppression of prescription drug price informationhits the hardest are the poor, the sick, and particularly the aged."). As well as abenefit to individual consumers, the Court pointed to the fact that "society also mayhave a strong interest in the free flow of commercial information." Id. at 764 (citingBigelow v. Virginia, 421 U.S. 809 (1975)).122. Id. at 766-67. The Court did acknowledge the state's interest by noting theneed to monitor the "clinical skill involved in the compounding of drugs," the phar-macist's role as physician's adjunct, and the general need to uphold "the professionalimage of the pharmacist." Id. at 766-68. The state had argued that if it were to allowsuch price advertising, customers "will choose the low-cost, low-quality service anddrive the 'professional' pharmacist out of business." Id. at 769. The state furtherclaimed that advertising might not cause prices to fall, yet might still result in theloss of stable pharmacist-customer relationships and damage to the professional im-age of the pharmacist. Id. at 767-68.123. Id. at 769.124. Id. In response to the state's arguments, the Court noted that "the justifica-tions Virginia has offered for suppressing the flow of prescription drug price informa-tion, far from persuading us that the flow is not protected by the First Amendment,have reinforced our view that it is." Id. at 770.125. Id. at 770 (the alterative theory advanced by the Court was that the "infor-1990]MAINE LAW REVIEWnot place a wholesale ban on the "dissemination of concededlytruthful information about entirely lawful activity, fearful of thatinformation's effect upon its disseminators and its recipients. '" 120While protected by the first amendment from complete prohibi-tion, commercial speech may nevertheless be subject to certainforms of regulation.127 In dicta, the Court gave examples of threeforms of permissible commercial speech regulation: 1) reasonableregulation of time, place, and manner of speech; 2) prohibition ofadvertising that is false or misleading; and 3) prohibition of adver-tisements which propose transactions that are themselves illegal.128C. Bates: Lawyer Advertising Protected as Commercial SpeechOne year after granting commercial advertising first amendmentprotection in Virginia Pharmacy, the Supreme Court extended simi-lar protection to an attorney's advertisement in Bates v. State Barof Arizona.129 Two attorneys, in hopes of generating business fortheir legal clinic, placed an advertisement in a newspaper listingtheir fees for certain routine legal services.130 While admittedly vio-lating an Arizona state disciplinary rule prohibiting lawyer advertis-ing, 31 the attorneys argued that they had been impermissibly disci-plined because the applicable rule amounted to an unconstitutionalrestriction on commercial speech.132 As in Virginia Pharmacy, themation is not in itself harmful, that people will perceive their own best interests ifonly they are well enough informed, and that thp beet means to that end is to openchannels of communication rather than close them").126. Id. at 773.127. Id. at 770. The Court asserted that the state is "free to require whateverprofessional standards it wishes of its pharmacists . . . .But it may not do so bykeeping the public in ignorance of the entirely lawful terms that competing pharma-cists are offering." Id.128. Id. at 771-72. These types of regulation are sometimes available with non-commercial speech as well. Time, place, and manner restrictions are permissible ifthey are not based on the content of the message, satisfy a significant governmentalinterest, and permit other alternative forms of speech. Restrictions on false or mis-leading speech are similarly not confined to the commercial context. Id. at 771.129. 433 U.S. 350 (1977). Following the decision in Virginia Pharmacy, somedoubt remained as to whether the Court would extend the rationale of their ruling toattorney advertising. The Virginia Pharmacy Court carefully limited its decision tothe facts of the case and specifically noted that its holding regarding advertising ofproducts sold by pharmacists might not apply equally to the regulation of advertise-ments of legal services by attorneys. 425 U.S. at 773 n.25. Rather than dealing instandardized products, attorneys and doctors render a variety of services, resulting inthe "enhanced possibility for confusion and deception" should advertising be under-taken. Id.130. Bates v. State Bar of Arizona, 433 U.S. at 354.131. Id. at 355. The attorneys in Bates were sanctioned for violating DR 2-101(B)of the Arizona Code of Professional Responsibility. Id. at 355-56. The applicable rulein Arizona in 1976 was substantially similar to the disciplinary rule promulgated inthe ABA's Model Code in 1969. Id. at 355. See supra note 93.132. Bates v. State Bar of Arizona, 433 U.S. at 356. The disciplined attorneys also[Vol. 42:3691990] SOLICITATION BY LAWYERSBates Court applied a balancing test to determine the constitution-ality of the rule.13 The Court weighed the public's need for andright to accurate information concerning the cost and availability oflegal services, against the state's arguments for the maintenance oflegal professionalism. 12" The Court determined that public access tothe legal system outweighed the state's interest.5 5 Therefore, theasserted that the rule to which their conduct was subject violated Sections 1 and 2 ofthe Sherman Act because of its tendency to limit competition. Id. The Court, impos-ing the state-action exemption of the Sherman Act, found that claim barred. Id. at363. It follows, however, that since lawyers' ethical rules concerning advertising andsolicitation constitute state-action, they are subject to the constitutional constraintsof the commercial speech doctrine. See Maute, supra note 103, at 490; Note, Sher-man Act Scrutiny of Bar Restraints on Advertising and Solicitation by Attorneys,62 VA. L REv. 1135, 1136 n.14 (1976).133. Bates v. State Bar of Arizona, 433 U.S. at 368-79. It has been asserted thatbalancing tests are "skewed toward suppression" when courts employ them in com-mercial speech restriction matters. Note, Constitutional Protection of CommercialSpeech, 82 COLUM L IRv. 720, 746 (1982). Commercial speech promotes only the so-called "listener" and "process" interests underlying the first amendment. The "lis-tener interest" refers to benefits derived by the recipient of the information. Id. at733-35. The "process interest" refers to the value in maintaining "the structure thatpermits communication," and in a broader sense, "the general marketplace of ideas."Id. at 735-36. The speaker's expressional interests are not balanced against the gen-eral social need to regulate speech; rather, what is weighed is "the interest of thepublic in hearing the speech against the interest of that very same public in not hear-ing it." Id. at 746.134. Bates v. State Bar of Arizona, 433 U.S. at 368-79. In support of the ruleprohibiting lawyer advertising, the state presented a six-point analysis urging the va-lidity of the regulation. The state argued: (1) advertising would undermine the attor-ney's sense of dignity and self-worth, thereby degrading the legal profession; (2) be-cause attorneys' services are so highly individualized, price advertisement wouldinherently mislead the consumer by ignoring the particular attorney's skills and byfailing to tailor the information to a particular client's needs; (3) advertising wouldstir up litigious tendencies among the public; (4) high advertising costs would bepassed on to consumers through increased fees and discourage young attorneys fromsetting up practice; (5) advertising would discourage quality service because attorneyswould likely provide standard services to clients, regardless of actual need; and (6) ageneral restriction against advertising lends itself to tighter enforcement than a lessrestrictive alternative. Id.135. In rejecting the arguments advanced by the state, the Court found "the pos-tulated connection between advertising and the erosion of true professionalism to beseverely strained." Id. at 368. The Court noted that early lawyers viewed the law as apublic service; the ban on advertising originated merely as a rule of etiquette thatonly later evolved into a professional ethic. Id. at 371. See supra notes 63-66 andaccompanying text. In this regard, the Court observed that "habit and tradition arenot in themselves an adequate answer to a constitutional challenge." Bates v. StateBar of Arizona, 433 U.S. at 371. In fact, the advertising ban might be viewed by thepublic as a failure by the profession to meet community needs. Id. at 370. In discuss-ing the public's need for information regarding the availability and terms of legalservices, the Court noted the following. (1) the public has a right to make an in-formed, intelligent choice concerning legal counsel; (2) lack of advertising encouragesthe public to avoid the legal profession out of a fear of exorbitant fees or an inabilityto locate a competent attorney, and (3) advertising may help to reduce prices, makingMAINE LAW REVIEWfirst amendment prohibited a "blanket suppression" of attorney ad-vertising. 13 The holding, however, was carefully tailored to the factsof the case 3 7 and echoed permissible forms of speech regulation pre-viously set out in Virginia Pharmacy.38 Specifically reserved wasthe question of the permissible scope of regulation of in-person so-licitation of clients by attorneys.'39D. Primus and Ohralik: Permissible Bans on Non-PoliticalIn-Person SolicitationNot long after Bates, the Supreme Court took the opportunity toaddress the matter of in-person solicitation of clients by attorneys inthe companion cases of In re Primus'" and Ohralik v. Ohio StateBar Association.'4 ' Both cases stemmed from disciplinary actionslegal services fully available, particularly for "the not-quite-poor and the unknowl-edgeable." Id. at 370, 376-77.136. Id. at 379, 383. The Court relied heavily on their reasoning in Virginia Phar-macy. See supra notes 117-28 and accompanying text. After summarizing VirginiaPharmacy, the Court noted that it had relied on the former "because the conclusionthat Arizona's disciplinary rule is violative of the First Amendment might be said toflow a fortiori from it." Id. at 365. Justice Rehnquist dissented from the portion ofthe Bates opinion that held the Arizona rule prohibiting lawyer advertising to be aninfringement on the first amendment. Id. at 404 (Rehnquist, J., dissenting in part).His dissent declared that, in effect, invocation of the first amendment to protect ad-vertisements of services undermines the amendment, which is "a sanctuary for ex-pressions of public importance or intellectual interest." Id.137. The only constitutional issue addressed was whether a state can prevent anattorney from publishing a "truthful advertisement concerning the availability andterms of routine legal services." Id. at 384.138. Id. at 383. See supra note 128 and accompanying text. After Bates, "the fo-cus of debate over lawyer advertising shifted from whether advertising should be per-mitted to how it should be regulated." Note, Direct-Mail Solicitation by Attorneys:Bates to R.M.J., 33 SYRACUSE L. REV. 1041, 1051 (1982). The ABA drafted and ap-proved two proposed disciplinary rules governing the regulation of advertising. ABABOARD OF GOVERNORS REPORT 177B (1977). One proposed rule construed Bates liber-ally, forbidding only "false, fraudulent, misleading or deceptive" advertising. The sec-ond model reflected a narrow reading of Bates, listing numerous restrictions on thetime, place and manner of lawyer advertising. Id. at 11-30. The latter, known as the"regulatory" model, was ultimately adopted by the American Bar Association. MODELCODE, supra note 92, DR 2-101, 2-102 (1980). The House of Delegates of the ABA,however, recommended that both proposed rules be sent to the individual states forconsideration. See Welch, Bates, Ohralik, Primus-The First Amendment Challengeto State Regulation of Lawyer Advertising and Solicitation, 30 BAYLOR L. REV. 585,603 (1978). While the ABA acted expeditiously in revamping its model disciplinaryrule on advertising, the individual jurisdictions' reaction to Bates was hesitant and anumber of states were slow to formulate new advertising standards. Hazard, Pearce &Stempel, Why Lawyers Should be Allowed to Advertise: A Market Analysis of LegalServices, 58 N.Y.U. L. REV. 1084, 1086 (1983).139. Bates v. State Bar of Arizona, 433 U.S. at 366.140. 436 U.S. 412 (1978).141. 436 U.S. 447 (1978). The Court handed down the decisions in Ohralik andPrimus on the same day.[Vol. 42:3691990] SOLICITATION BY LAWYERSagainst attorneys for soliciting clients. However, each involvedmarkedly different factual settings that are illustrative of the oppo-site ends of the solicitation spectrum.14 2In Primus, a cooperating attorney for the American Civil LibertiesUnion (ACLU) addressed a group of women who had been sterilizedas a condition of continued receipt of government benefits under theMedicaid Program.1 4 3 The lawyer advised the women of their legalrights and suggested that a lawsuit was possible.1 4 ' Following themeeting, the lawyer sent a letter to one of these women, advising herthat the ACLU would provide her with free legal representationshould she want to institute a suit against the doctor who had per-formed her sterilization surgery.1 4 5 Subsequently, the lawyer wasdisciplined for soliciting a client on behalf of the ACLU,"' and forsoliciting a client after having provided unsolicited legal advice.1 7142. Note, Constitutional Law - Attorney Advertising - Targeted Mailings - ABlanket Prohibition of Direct Mail Solicitations to Targeted Accident Victims Vio-lates an Attorney's Right of Expression Under the First and Fourteenth Amend-ments of the United States Constitution, 51 J. AIR L & Com. 661, 675 (1986);Ohralik v. Ohio State Bar Ass'n, 436 U.S. at 471 (Marshall, J., concurring). See infranotes 143-47, 154-56 and accompanying text. See also Pulaski, In-Person Solicitationand the First Amendment: Was Ohralik Wrongly Decided?, 1979 Ann. ST. L.J. 23, 34.143. In re Primus, 436 U.S. at 414-15.144. Id. at 416.145. Id.146. The Board of Commissioners on Grievances and Discipline of the SupremeCourt of South Carolina charged and found Attorney Edna Primus to have violatedDR 2-103(D)(5)(a) and (c) of the disciplinary rules of the Supreme Court of SouthCarolina that provided:DR 2-103(D)A lawyer shall not knowingly assist a person or organization that recom-mends, furnishes, or pays for legal services to promote the use of his ser-vices or those of his partners or associates. However, he may cooperate in adignified manner with the legal service activities of any of the following,provided that his independent professional judgment is exercised in behalfof his client without interference or control by any organization or otherperson:(5) Any other non-profit organization that recommends, furnishes, or paysfor legal services to its members or beneficiaries, but only in those instancesand to the extent that controlling constitutional interpretation at the timeof the rendition of the services requires the allowance of such legal serviceactivities, and only if the following conditions, unless prohibited by suchinterpretation, are met-(a) The primary purposes of such organization do not includethe rendition of legal senices.(c) Such organization does not derive a financial benefit fromthe rendition of legal services by the lawyer.Id. at 418-21, 418 n.10.147. Id. at 421. Primus was also charged with and found to have violated DR 2-104(A)(5) of the disciplinary rules of the Supreme Court of South Carolina thatMAINE LAW REVIEWUpon review of the lawyer's conduct, the United States SupremeCourt struck down the application of the designated disciplinaryrules." 8 The Court granted full first amendment protection to thelawyer's speech. Her actions were motivated not by her pecuniaryinterests, but constituted an expression of her political beliefs andthe ACLU's legitimate objectives."" Relying primarily on the 1963case of NAACP v. Button,'5" the Court viewed this as politicalrather than commercial speech.' 5' While the state generally had thepower to regulate the legal profession,'52 the questioned solicitationdeserved the broad, comprehensive protection granted to politicalexpression and association by the first amendment, rather than themore limited protection afforded commercial speech.15 'In contrast with Primus, the attorney disciplined in Ohralik solic-ited two eighteen-year-old automobile accident victims on a face-to-provided:DR 2-104(A)A lawyer who has given unsolicited advice to a layman that he should ob-tain counsel or take legal action shall not accept employment resulting fromthat advice, except that:(5) If success in asserting rights or defenses of his client in litigation in thenature of a class action is dependent upon the joinder of others, a lawyermay accept, but shall not seek, employment from those contacted for thepurpose of obtaining their joinder.Id. at 418-21, 420 n.11.148. The Court held that the application of the South Carolina disciplinary rulesviolated the first and fourteenth amendments. Id. at 439.149. Id. at 422, 431, 439.150. 371 U.S. 415 (1963). In NAACP v. Button,.the Court characterized activitiesby the attorneys of the National Association for the Advancement of Colored People(NAACP), in which they arranged community meetings to discuss school desegrega-tion and offered to represent attendees in legal proceedings to achieve desegregationas "modes of expression and association protected by the First and FourteenthAmendments." Id. at 420-21, 428-29. The Court held that solicitation of prospectivedesegregation litigants was included within the right to associate for the advancementof political goals and ideas, and thus could not be prohibited by the state "under itspower to regulate the legal profession." Id. at 428-30.151. Id. at 431-32. See Andrews, Lawyer Advertising and the First Amendment,1981 Alzi. B. FOUND. RES. J. 967, 976 n.48.152. In re Primus, 436 U.S. at 432. See supra note 88 for discussion of statepower. The state claimed that the disciplinary action against Primus was "part of aregulatory program aimed at the prevention of undue influence, overreaching, misrep-resentation, invasion of privacy, conflict of interest, lay interference, and other evils.. . in solicitation." Id. While not denying the power of the state to take measures toguard against such matters, the Court reiterated that" 'broad rules framed to protectthe public and to preserve respect for the administration of justice' must not work asignificant impairment of 'the value of associational freedoms.' ". In re Primus, 436U.S. at 426 (quoting United Mine Workers of America v. Illinois Bar Ass'n, 389 U.S.217, 222 (1967)).153. In re Primus, 436 U.S. at 431, 434.[Vol. 42:369SOLICITATION BY LAWYERSface basis, offering his services for a contingency fee.'" The attor-ney's contact with the victims occurred shortly after their accidents.He visited one victim who was in traction in the hospital and an-other who had only been released from the hospital the daybefore.155 The attorney defended his actions by saying that in-per-son solicitation constituted commercial speech and was thereforeprotected by the first amendment.""( In rejecting this argument, theCourt distinguished the public advertisement in Bates from in-per-son solicitation, pointing out that the latter "may exert pressure [onan accident victim] and often demands an immediate response"; thisleaves the victim little "opportunity for comparison or reflection."15 7The lawyer's conduct in Ohralik was primarily to advance his ownpecuniary interests, rather than to vindicate the legal rights of154. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 449.51 (1978).155. Id. at 450-51. The Court found the facts "a striking example of the potentialfor overreaching that is inherent in a lawyer's in-person solicitation of professionalemployment." Id. at 468. The Court's condemnation of Ohralik's conduct in its syn-thesis of the case illustrates the extreme nature of his acts:He approached two young accident victims at a time when they were espe-cially incapable of making informed judgments or of assessing and protect-ing their own interests. He solicited Carol McClintock in a hospital roomwhere she lay in traction and sought out Wanda Lou Holbert on the dayshe came home from the hospital, knowing from his prior inquiries that shehad just been released. Appellant urged his services upon the young womenand used the information he had obtained from the McClintocks, and thefact of his agreement with Carol, to induce Wanda to say "O.K." in re-sponse to his solicitation. He employed a concealed tape recorder, seem-ingly to ensure that he would have evidence of Wanda's oral assent to therepresentation. He emphasized that his fee would come out of the recovery,thereby tempting the young women with what sounded like a cost-free andtherefore irresistible offer. He refused to withdraw when Mrs. Holbert re-quested him to do so only a day after the initial meeting between appellantand Wanda Lou and continued to represent himself to the insurance com-pany as Wanda Holbert's lawyer.Id. at 467.156. Id. at 455. Ohralik argued such solicitation may provide an individual with"information about his legal rights and remedies," thereby promoting informed deci-sion-making. Id. at 458. In rejecting this justification, the Court noted the applicabledisciplinary rules neither prohibit a lawyer from communicating such information toindividuals nor from recommending that they obtain counsel Id. What is prohibitedis "using information as bait" to obtain a client for a fee and accepting employmentas a result of the unsolicited advice given. Id. Ohralik was disciplined under DR 2-103(A) and DR 2-104(A) of the Ohio Code of Professional Responsibility. Id. at 453,453 n.9. The applicable rules in Ohio were identical to those promulgated by the ABAin 1969. See supra note 93.157. Obralik v. Ohio State Bar Ass'n, 436 U.S. at 457. The Court noted that, onthe other hand, advertising provides information to the public and leaves individuals"free to act upon it or not." Id. The Court added that "[tihe aim and effect of in-person solicitation may be to provide a one-sided presentation and to encouragespeedy and perhaps uninformed decisionmaking [sic]; there is no opportunity for in-tervention or counter-education by agencies of the Bar, supervisory authorities, orpersons close to the solicited individuaL" Id.1990]MAINE LAW REVIEWothers, or exercise political expression or associational freedom.0 8As such, the in-person solicitation of remunerative employment wasentitled only to marginal first amendment protection and "subjectto regulation in furtherance of important state interests." 1' Giventhe state's compelling interest in preventing the potential overreach-ing inherent in solicitation, the rule restricting a lawyer's in-personsolicitation of employment was rationally justified.'Following Primus and Ohralik, it was generally believed that theSupreme Court had signaled a significant retreat from the firstamendment protection previously conferred on commercial speechin Virginia Pharmacy.'' However, Primus and Ohralik presumablycontributed little to the extant doctrine of commercial speech.Primus was not analyzed as a commercial speech case and Ohralikinvolved extremely unprofessional activity.'16 Despite this ambiva-lence, the legal profession continued to receive the message that law-yers were permitted to advertise but that commercial, non-politicalsolicitation was prohibited.E. Central Hudson: A Balancing Test for Commercial SpeechRegulationsIn 1980, the Supreme Court rendered a decision that helped clar-ify the degree of constitutional protection to which commercialspeech was entitled. In Central Hudson Gas & Electric v. Public158. Id. at 458.159. Id. at 459. In his concurrence, Justice Marshall noted that Ohralik's primaryoffense was not his solicitation of business, but the manner in which he accomplishedthe solicitation. Id. at 470 (Marshall, J., concurring). See supra note 155.160. Id. at 464-67. Ohralik argued that nothing less than a showing of actual over-reaching or actual harm to the solicited individuals would justify a total prohibitionby the state for in-person solicitation. Id. at 464. The Court rejected this argument.The rules prohibiting solicitation are prophylactic, and under these circumstances,the lawyer's conduct was presumed to be overreaching. Unlike most advertising, in-person solicitation takes place outside the public view, making it difficult for the stateto prove actual harm. Id. at 466. See infra note 197. It has been noted that the Courtabandons the analytical framework developed in commercial speech cases when itconsiders nonadvertising forms of promotion by professionals. Specifically, it does notdiscuss benefits and applies a less rigorous test to measure the importance of costs.McChesney, Commercial Speech in the Professions: The Supreme Court's Unan-swered Questions and Questionable Answers, 134 U. PA. L. Rv. 45, 57 (1985).161. See Note, Trends in First Amendment Protection of Commercial Speech, 41VAND. L. REV. 173, 186 (1988).162. See Note, supra note 142, at 679-80. It is interesting to note that in uphold-ing the rule prohibiting solicitation in Ohralik, the Court did not apply, or even al-lude to, the traditional standards for time, place and manner regulation articulated inearlier commercial speech cases. See supra notes 128 & 138 and accompanying text.Arguably the Court created a new category of speech for in-person solicitation, sub-jecting it to a lower level of scrutiny than that previously implemented in commercialspeech cases. Andrews, supra note 151, at 978.[Vol. 42:369SOLICITATION BY LAWYERSService Commission,6 3 a utility company challenged an order of theNew York Public Service Commission that banned any promotionaladvertising that might tend to stimulate the use of electricity.'" Un-dertaking a fact-specific evaluation of the Commission's prohibitiveorder, the Court formulated a four-part test to be employed in casesinvolving commercial speech restrictions. First, the speech at issuemust not concern an unlawful activity nor be misleading.105 Second,the restriction on commercial speech must serve a "substantial" gov-ernmental interest.166 Third, the regulation must directly advancethe asserted governmental interest.167 Fourth, the regulation mustbe "no more extensive than is necessary to serve that interest."' 6The Commission had argued that the state had a stake in energyconservation and the preservation of fair utility rates that justifiedthe advertising ban. 69 However, the Court held that the Commis-sion's prohibition violated the first amendment because it failed toshow that a more limited speech regulation would not protect thestate's interest.'163. 447 U.S. 557 (1980).164. Id. at 558-60. The Commission originally promulgated the order during theenergy shortage of the early 1970s. The state became concerned that it would nothave sufficient fuel reserves to meet consumer demands for the 1973-74 winter. Id. at559.165. Id. at 566. The government may totally suppress misleading or deceptive ad-vertising and commercial speech related to illegal activity. Id. at 563.64 (citingOhralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978) and Pittsburgh Press Co. v.Human Relations Comm'n, 413 U.S. 376 (1973)). Conversely, all commercial speechthat is not misleading, deceptive, or related to unlawful activity is constitutionallyprotected and thereby subject to a "more circumscribed" governmental power. Id. at564. There was no claim that the utility company's ads were misleading, deceptive orrelated to unlawful activity. Id. at 566.166. Id. at 566. The state argued that it needed to suppress any advertising thatcould increase public demand for electricity, especially in a time of dependence onforeign energy sources. The state also argued that the utility's own proposed equaliza-tion of rate structures was likely to be undermined by promotional advertising. TheCourt found that the Commission's interests in energy conservation and fair, efficientutility rates were substantial Id. at 568-69.167. Id. at 566. The Court found that the state's argument concerning the effectof advertising on utility rates was "at most, tenuous" and "highly speculative" butthat the ban on the ads directly advanced energy conservation. Id. at 569.168. Id. at 566. The fourth prong of the Central Hudson test came to be known asthe "least restrictive" means analysis, whereby a state had to show a commercialspeech restriction was the least restrictive means available to further its interests inorder for the restriction to withstand first amendment scrutiny. In 1989, the SupremeCourt stated that some standard short of a least restrictive means is required for acommercial speech restriction to be valid. Board of Trustees State Univ. of N.Y. v.Fox, - U.S. _ 109 S. Ct. 3028 (1989). See infra notes 215-23 and accompa-nying text.169. See supra note 166.170. Central Hudson Gas & Elec. v. Public Serv. Comm'n, 447 U.S. at 571. Never-theless, the rule failed under the "least restrictive means" test because all advertisingwas restricted without any showing that a more limited restriction would not ade-1990]MAINE LAW REVIEW [F. In re R.M.J.: Protection for General MailingsThe case of In re R.M.J.'7' gave the Supreme Court an opportu-nity to implement the four-part Central Hudson test in a situationthat involved published attorney advertising and the use of directmailings. 172 A lawyer had included information in advertisementsother than that explicitly permitted by a Missouri state disciplinaryrule.17 3 Additionally, the lawyer had mailed a letter announcing theopening of his new office to individuals with whom he had no per-sonal or professional ties, a practice also prohibited under a statedisciplinary rule. 17 4 The rules specifically limited lawyer advertisingto ten delineated categories of information and prohibited mailingsto other than "lawyers, clients, former clients, personal friends andrelatives.' ' 7 5 However, the Court was unable to find the questionedspeech misleading, "inherently misleading, or that restrictions shortof an absolute prohibition would not have sufficed to cure any possi-ble deception.' 7 The state's strict regulation of language used inquately further the interest in energy conservation. For example, the ban might con-ceivably prevent the utility from advertising "products and services that use energyefficiently." Id. at 570, 569-71. Justice Blackman's concurrence denounced the four-part test implemented by the majority as inconsistent with prior cases and as lackingadequate first amendment protection for truthful, nondeceptive commercial speech.Id. at 573 (Blackman, J., concurring). Justice Blackman questioned whether the statecould properly suppress information on the availability of a legally offered product,merely to decrease the public demand for its use. He argued that absent coercion,deception or misinformation, a state should not be able to prohibit speech simplybecause of the persuasive effect the message may have on the public. Id. at 573-75.Even given the importance of energy conservation, suppression of speech was an im-permissible way to achieve such a goal. Id. at 574. See supra note 164.171. 455 U.S. 191 (1982).172. Id. at 193-96.173. Id. at 194-95. The attorney in R.M.J. was privately reprimanded for violatingMissouri's version of DR 2-101(B) that allowed lawyers to "publish . . . in newspa-pers, periodicals and the yellow pages of telephone directories" the following: name;address and telephone number; areas of practice; date and place of birth; schoolsattended; foreign language ability; office hours; fee for an initial consultation; availa-bility of a schedule of fees; credit arrangements; and the fixed fee to be charged forten specified routine services. Id. at 194, 194 n.3 (quoting Mo. REV. STAT., Sup. Ct.Rule 4, DR 2-101(B) (1978)). An addendum to the rule existed prescribing how anattorney could list areas of practice in his advertisement. Id. at 194-95, 195 n.6 (quot-ing Mo. REV. STAT., Sup. Ct. Rule 4, Addendum III (1977)). Cf. supra notes 94 & 138.174. Id. at 196. The attorney was charged with violating Missouri's version of DR2-102(A)(2) which permitted a lawyer to mail a "brief professional announcementcard stating new or changed associates or addresses, change of firm name, or similarmatters." Id. (quoting Mo. REV. STAT., Sup. Ct. Rule 4, DR 2-102(A)(2) (1978)).175. Id. (quoting Mo. REV. STAT., Sup. Ct. Rule 4, DR 2-102(A)(2) (1978)). Therule that restricts the sending of announcement cards to delineated classifications ofindividuals has been referred to as the "'country club' exception to the nonsolicita-tion rule," in that it enables established lawyers to broadly interpret the phrase "per-sonal friends." Maute, supra note 103, at 502 n.106.176. In re R.M.J., 455 U.S. at 206-207. Contrary to the rule, the advertisementsincluded information regarding the jurisdictions in which the attorney was licensed toVol. 42:3691990] SOLICITATION BY LAWYERSadvertising and its absolute prohibition against mailing announce-ment cards to persons outside of specifically delineated classifica-tions thereby violated the first amendment.1"The Court commented generally on the state's authority to regu-late advertising. The Court noted that: "(m)isleading advertisingmay be prohibited entirely"178 and "(e)ven when a communication isnot misleading, the State retains some authority to regulate" suchspeech.179 Accordingly, lawyer advertising was firmly entrenched; ef-forts to deprive the public of pertinent information would be care-fully scrutinized. Interestingly, the Court regarded both the pub-lished advertisement and the direct mailing as commercial speech,synonymous with the term "advertising."' 80 While the Court notedthat, with respect to mailings, supervisory problems existed thatwere not present in newspaper advertising cases,1s1 general mailingswere neither labeled nor proscribed as "solicitation." Although theCourt acknowledged an attorney's right to advertise through generalmailings, the question of "targeted" mailings, directed toward aclosely defined set of potential clients, was not addressed, either interms of its propriety or its inclusion within the commercial speechcategory.G. Zauderer: State Compelled Disclosure in Attorney AdsIn 1985, the Supreme Court again addressed the regulation ofpractice, used capital letters to note that he was "Admitted to Practice Before THEUNITED STATES SUPREME COURT", listed areas of practice beyond those per-mitted by the rule's addendum, and did not make a disclaimer of certification ofexpertise after listing the areas of practice. Id. at 197. There is no indication that anyimpropriety surrounded the substance of the announcement cards that were mailedby the attorney. Id. at 205-206. To the state's argument that an attorney's letter to anordinary consumer may invade his privacy or otherwise frighten him, the Court an-swered that the attorney be required to mark the envelope "This is an Advertise-ment." Id. at 206 n.20. Cf. also infra note 181.177. Id. at 207. It has been asserted that in accepting the premise that attorneyadvertising has a greater potential for deception than other forms of commercialspeech, the Court created a different and less exacting standard of review for regula-tions that limit attorney advertising than it had provided for other forms of commer-cial speech regulation in Central Hudson. Note, In re R.M.J.: Reassessing the Exten-sion of First Amendment Protection to Attorney Aduertising, 32 CA m UL. Rav. 729,754 (1983).178. In re IMJ., 455 U.S. at 203.179. Id.180. See id. at 204-207.181. Id. at 206. The Court noted that there was no indication that an inability tosupervise was the reason why mailings of lawyer announcements were restricted. Id.The Court suggested, however, the possibility of requiring that copies of general mail-ings be filed with the Advisory Committee to the Supreme Court of Missouri, thestate body that prosecutes disciplinary proceedings. Id. (citing proposed MODELRuLEs, supra note 97, Rule 7.2(b), that requires that a copy of any advertisement beretained for one year).MAINE LAW REVIEW [Vol. 42:369commercial speech by attorneys in Zauderer v. Office of Discipli-nary Counsel.182 An attorney ran two newspaper advertisements.The first informed readers that he would represent individualscharged with drunk driving and would refund his legal fee if theclient were convicted on a drunk driving charge. 18 The second dis-played a drawing of an intrauterine device, accompanied by theheading "DID YOU USE THIS IUD?," and informed readers thathis firm was willing to represent women injured by their use of theDalkon Shield Intrauterine Device.184 Zauderer was charged with vi-olating numerous disciplinary rules as a result of the advertise-ments,"8 5 rules that limited the realm of permissible informationthat attorneys could disseminate and that required that other infor-mation be disclosed. The attorney claimed that such content-basedrules failed to withstand first amendment scrutiny because the statehad provided "no justification" for them.8 6 The Court focused on182. 471 U.S. 626 (1985).183. Id. at 629-30. Two days later, an attorney with the Office of DisciplinaryCounsel of the Supreme Court of Ohio warned Zauderer that he might be subject todisciplinary action. Ohio Disciplinary Rule DR 2-106(C) prohibited an attorney fromrepresenting a criminal defendant on a contingency fee basis. Id. at 630. Zaudererimmediately withdrew the advertisement and apologized to the Office of DisciplinaryCounsel, assuring them that he would not accept any resulting employment. Id. Hesubsequently was disciplined for violating Ohio Disciplinary Rule DR 2-101(A) withrespect to this advertisement. Because it offered unethical representation on a contin-gency-fee basis in a criminal case, it allegedly constituted a message "false, fraudu-lent, misleading, and deceptive to the public." Id. at 631 (citing Ohio DisciplinaryRule DR 2-101(A)). A panel of the Board of Commissioners on Grievances and Disci-pline of the Supreme Court of Ohio, upon review of the matter, found the advertise-ment deceptive. However, the Board did not find the offer of an unethical service tobe the deceptive component. Instead, the deception lay in the fact that a client mightbe convicted for a lesser offense than drunk driving and still be liable for fees, amessage stated nowhere in the ad. Id. at 634. The 1982 Ohio version of DR 2-101(A)was substantially the same as the disciplinary rule promulgated in the ABA's ModelCode in 1980. Id. at 631 n.3. See supra note 94.184. Zauderer v. Office of Disciplinary Counsel, 471 U.S. at 630-31.185. Id. at 631-34. Pursuant to this advertisement, the attorney was charged withviolating Ohio Disciplinary Rules DR 2-101(B), DR 2-103(A), and DR 2-104(A). Id. at632-33. Specifically, the attorney allegedly violated DR 2-101(B) because the adver-tisement contained an illustration, was not dignified, and contained information thatfell outside of the twenty designated informational categories to which attorney ad-vertisements were limited. Id. at 632. DR 2-103(A) prevents solicitation of employ-ment to a person who did not seek legal advice. DR 2-104(A) prevents a lawyer fromaccepting employment that results from such unsolicited advice. Id. at 633. Addition-ally, the lawyer allegedly failed to disclose certain required information; Ohio Disci-plinary Rule 2-101(B)(15) provided that any contingent fee advertisement disclose"whether percentages are computed before or after deduction of court costs and ex-penses." Id. The Ohio Disciplinary Rule DR 2-101(B) was similar to the disciplinaryrule promulgated in the ABA's Model Code; however, certain designated informa-tional categories differed. Compare id. at 632-33 n.4 with supra note 94.186. Zauderer v. Office of Disciplinary Counsel, 471 U.S. at 634 (appellant citedBates and In re R.M.J. as a defense). Additionally, Zauderer raised a due processSOLICITATION BY LAWYERSwhether a state may discipline an attorney for publishing nondecep-tive newspaper advertisements to solicit business and on whether astate may seek to prevent the public from being deceived by requir-ing attorneys to disclose fee arrangements in their advertisements.The Court applied the test enunciated in Central Hudson to deter-mine whether the commercial speech at issue was entitled to limitedfirst amendment protection.1 8 7 The Court found two prohibitionsclearly impermissible: (1) prohibitions on solicitation of legal busi-ness through advertisements containing advice and information re-garding specific legal problems and (2) prohibitions against the useof illustrations in advertising."' The state had contended that abroad prophylactic rule was necessary to ensure that individualswere not encouraged to institute litigation based on inaccurate andambiguous statements, or to ensure that individuals were notmanipulated through the use of illustrations. The Court rejectedboth contentions. '89 The state had failed to meet its burden of show-ing that the ban on advertising directly advanced substantial stateinterests through the least restrictive means available, thereby fail-ing under the Central Hudson test.190 An attorney may not be disci-plined for the solicitation of legal business through print advertisingthat contains truthful, nondeceptive information and advice aboutthe legal rights of potential clients.'9While striking down absolute prohibitions on advertising, theZauderer Court did not invalidate the rule that required that attor-ney advertisements affirmatively disclose certain information. Spe-cifically, the rules required that the advertisement explain themethod of computation for contingency fees when it offered serviceschallenge to the disciplinary proceeding itself, claiming he was afforded no notice ofthe charges against him. Id. at 636. See supra note 183. The Court summarily re-jected this contention. Zauderer v. Office of Disciplinary Counsel, 471 U.S. at 654-55.187. Id. at 638, 644, 647.188. Id. at 639-49.189. Id. at 642-44, 648-49. Also rejected was the premise that the use of illustra-tions was tantamount to an undignified advertisement. Id. at 647. Referred to by thisauthor as the "death of dignity," in that it resulted in an elimination of the require-ment that advertisements be dignified, the Court stated the principle as follows:[A]lthough the State undoubtedly has a substantial interest in ensuringthat its attorneys behave with dignity and decorum in the courtroom, weare unsure that the State's desire that attorneys maintain their dignity intheir communications with the public is an interest substantial enough tojustify the abridgment of their First Amendment rights.Id. at 647-48.190. Id. at 644, 648-49.191. Id. at 647, 649. Within the context of examining commercial speech restric-tions, the Supreme Court continually has focused on the dissemination of truthfulinformation to consumers, rather than on the states' attempt to use restrictions todisadvantage certain competitors within the profession. See McChesney, supra note160, at 99.1990]MAINE LAW REVIEWon that basis.1"2 The Court recognized that in some situations acompulsion to speak may be equally violative of the first amend-ment as a prohibition against speech. However, as long as disclosurerequirements are reasonably related to a state's interest in prevent-ing deception of the consumer, the lawyer's rights receive adequateprotection.193 Since the informational value to consumers is the pri-mary justification for protecting commercial speech, compelled dis-closure can be less rigorously scrutinized than flat prohibitions onthe dissemination of information.19' Because the possibility of de-ception was "self-evident" when an advertisement refers to a contin-gent-fee arrangement without mentioning liability for costs, theCourt found the state's position was "reasonable enough" to supportthe disclosure requirement.195 In so doing, the Court clearly signaledit would be considerably more lenient in its treatment of compelleddisclosure than outright bans on commercial speech.The Zauderer Court took the opportunity to review again the dis-tinctions between attorney advertising and attorney solicitation. Re-flecting on the Ohralik decision, the Court noted that in-person so-licitation was "a practice rife with possibilities for overreaching,invasion of privacy, the exercise of undue influence, and outrightfraud. 1 9 Noting that in-person solicitation raises "unique regula-tory difficulties because it is 'not visible or otherwise open to publicscrutiny,'" the Court stated that prophylactic rules against solicita-tion for pecuniary gain are justified.1 97The Court maintained the distinction between the two forms oflawyers' commercial speech, sustaining a ban on certain in-personsolicitation while carefully scrutinizing advertising rules. Althoughthe Court previously held that general mailings to the public consti-tuted advertising, 9s the Court acknowledged in Zauderer that evenprint advertisements are a form of solicitation. 9 9 Thus, followingZauderer, the legal profession again was left without clear delinea-tions as to what explicitly separates advertising from solicitation.192. Id. at 653. See supra note 185.193. Zauderer v. Office of Disciplinary Counsel, 471 U.S. at 650-51.194. Id. The validation of this Ohio Disciplinary Rule marked the SupremeCourt's first affirmation of a bar's disciplinary action against a lawyer for violating itsadvertising rules. See Maute, supra note 103, at 503.195. Zauderer v. Office of Disciplinary Counsel, 471 U.S. at 652-53.196. Id. at 641. See supra notes 154-60 and accompanying text.197. Id. (quoting Ohralik v. Ohio Bar Ass'n, 436 U.S. 447, 464-65 (1978)). TheCourt noted that "in-person solicitation of professional employment by a lawyer doesnot stand on a par with truthful advertising about the availability and terms of rou-tine legal services." Id. at 641-42 (quoting Ohralik v. Ohio Bar Ass'n, 436 U.S. at 455).198. See supra note 180 and accompanying text.199. See supra note 191 and accompanying text.[Vol. 42:369SOLICITATION BY LAWYERSH. Shapero: Direct Mail Solicitation PermissibleMore recently, in Shapero v. Kentucky Bar Association,200 theCourt again focused on the advertising-solicitation controversy. Theissue presented by the case was whether a state may categoricallyprohibit solicitation when a lawyer sends truthful, nondeceptive let-ters to a closely defined set of potential clients known to face a des-ignated legal problem. 201 The attorney in Shapero prepared a letterto be sent to potential clients known to be defendants in foreclosuresuits, offering to give such individuals "FREE information" on howthey could keep their homes.20 2 In a fact-specific review, the Su-preme Court distinguished written advertisements containing truth-ful and nondeceptive information from in-person solicitation by law-yers for profit.20 3 The Court rejected the state's contention that anabsolute ban on targeted, direct-mail solicitation was permissible be-cause of the serious potential for abuse inherent in all direct solicita-tion by lawyers. 2" Rather, the relevant inquiry was "whether themode of communication poses a serious danger that lawyers will ex-ploit any such susceptibility [of the client]," not whether clients sus-ceptible to undue influence exist.20°200. 486 U.s. 466 (1988).201. Id. at 468. The applicable rule in Kentucky at the time of this matter wasSupreme Court of Kentucky Rule 3.135(5)(b)(i) that provided:A written advertisement may be sent or delivered to an individual ad-dressee only if that addressee is one of a class of persons, other than afamily, to whom it is also sent or delivered at or about the same time, andonly if it is not prompted or precipitated by a specific event or occurrenceinvolving or relating to the addressee or addressees as distinct from thegeneral public.Shapero v. Kentucky Bar Ass'n, 486 U.S. at 470 n.2.Feeling that the principles set forth in Zauderer compelled the deletion of theabove-noted rule, the Kentucky Supreme Court replaced Rule 3.135(5)(b)(i) withABA Model Rule 7.3. Id. at 470-71. See supra note 100. ABA Model Rule 7.3, how-ever, also prohibited targeted, direct-mail solicitation by lawyers for pecuniary gain.Shapero v. Kentucky Bar Ass'n, 486 U.S. at 471.202. Shapero v. Kentucky Bar Ass'n, 486 U.S. at 469. Lawyers' targeted, directmail advertising does not fit neatly into either of the dichotomous "advertising" or"solicitation" labels. Perschbacher & Hamilton, Reading Beyond the Labels: Effec-tive Regulation of Lawyers, Targeted Direct Mail Advertising, 58 U. CoLo. L. Rv.255, 256 (1987). On the one hand, it lacks immediate and forceful personal contact;on the other hand, it attracts the recipients attention in a personalized manner. Id.at 256-57.203. Shapero v. Kentucky Bar Ass'n, 486 U.S. at 472 (citing Zauderer v. Office ofDisciplinary Counsel, 471 U.S. 626, 641-42 (1985)).204. Id. at 473-75. The state had argued that the present case was only "Ohralihin writing." Id.205. Id. at 474. The lower court disapproved of the letter in question because ittargeted people known to need legal services, rather than those generally who mightfind such services useful. Id. at 473. Noting that the latter group would include theformer, the Supreme Court asserted that "the First Amendment does not permit aban on certain speech merely because it is more efficient; the State may not constitu-1990]MAINE LAW REVIEW [Vol. 42:369The Shapero Court stated that the mode of targeted, direct-mailsolicitation "poses much less risk of overreaching or undue influ-ence" than in-person solicitation.206 Noting that it had not before"distinguished among various modes of written advertising to thegeneral public, '20 7 the Court asserted that neither print advertisingnor direct-mail solicitation involved "'the coercive force of the per-sonal presence of a trained advocate' or the 'pressure on the poten-tial client for an immediate yes-or-no answer to the offer of repre-sentation.' "208 Like any print advertising or general mailing,targeted letters convey information upon which the recipient can re-flect and exercise personal choice as to whether or not to act uponit.20 9 The same is not true with in-person solicitation. 10 Mindful ofthe fact that targeted, direct-mail solicitation may present greateropportunities for abuse or mistake than other forms of print adver-tising, the Court stated that this alone will not justify a total ban ondirect-mail solicitation.211 Less restrictive means exist for regulatingpotential abuses; for example, lawyers might be required to file allsuch solicitation letters with the state.212tionally ban a particular letter on the theory that to mail it only to those whom itwould most interest is somehow inherently objectionable." Id. at 473-74.206. Id. at 475 (citing Zauderer v. Office of Disciplinary Counsel, 471 U.S. at 642).The Court went on to note that "[u]nlike the potential client with a badgering advo-cate breathing down his neck," the recipient of a targeted letter can simply throw itaway. Id. at 475-76.207. Id. at 473.208. Id. at 475 (quoting Zauderer v. Office of Disciplinary Counsel, 471 U.S. at642).209. Id. at 475-76.210. Id. at 476.211. Id. The State argued that a personalized letter to an individual presents anincreased risk of deception because it could lead an individual to believe that thelawyer is more familiar with the case than he is actually or that a more serious legalproblem exists for the individual than actually does.212. Id. Prior to Shapero, the permissibility of targeted mailings by lawyers toindividuals known to have specific legal problems was considered by a number ofjurisdictions with varying results. See, e.g., Adams v. Attorney Registration and Disci-plinary Comm'n., 801 F.2d 968, 973-74 (7th Cir. 1986) (rule banning targeted, directmailings by attorneys to potential clients properly enjoined because such rule notlikely to withstand constitutional review; state's interest in protecting public not sub-stantial); State v. Moses, 642 P.2d 1004, 1007 (Kan. 1982) (attorney mailing 150 let-ters to homeowners offering assistance in selling homes "By Owner" impermissible assolicitation); In re Appert, 315 N.W.2d 204, 212 (Minn. 1981) (attorney mailing 250copies of brochure warning of dangers associated with use of "Dalkon Shield" permis-sible; rule proscribing direct-mail solicitation violated first amendment); In re vonWeigen, 63 N.Y.2d 163, 171, 470 N.E.2d 838, 841, 481 N.Y.S.2d 40, 43 (1984) (attor-ney mailing to victims and families of those injured or killed in collapse of KansasCity Hyatt sky-walk permissible; rule banning direct mail solicitation to such acci-dent victims unconstitutional); Dayton Bar Ass'n v. Herzog, 70 Ohio St. 2d 261, 262,436 N.E.2d 1037, 1038, cert. denied, 459 U.S. 1016 (1982) (attorney mailing 500-1000letters to defendants in municipal court cases informing them new law may allowjudgment debtors to forestall collections and inviting reader to call attorney imper-SOLICITATION BY LAWYERSIn Shapero, the Court recognized two forms of commercial speechby lawyers. Focusing on the mode of communication, in-person so-licitation of potential clients can be prohibited, but any truthfulwritten communication disseminated to potential clients is permit-ted. Because the risk of overreaching or undue influence is dimin-ished in the latter, the Court deliberately chose not to distinguishamong the various types of written advertising and mail solicitationswhen assessing attorney conduct. Having acknowledged in Zaudererthat even print advertisements are a form of solicitation,1 3 Shaperofurther demonstrated that the median that divides advertising fromsolicitation is narrow. Because all solicitation is not precluded fol-lowing Shapero, the line over which an attorney may not step whencharting a course between proper advertising and improper solicita-tion remains ambiguous. In dicta, however, the Court has impliedlyauthorized states to forbid for-profit in-person solicitation as a pro-phylactic measure.214L State University of New York v. Fox: Modification of theLeast Restrictive Means TestIn 1989, in the case of Board of Trustees of State University ofNew York v. Fox (SUNY),2 1 5 the Supreme Court considered the con-stitutionality of a university regulation that prohibited private com-mercial enterprises from operating on university campuses or in fa-cilities furnished by the university. 210 As a commercial speech case,SUNY has direct implications for lawyer advertising and solicitationcases. In evaluating the university's restriction on commercialspeech, the Court sought to modify the least restrictive means anal-ysis formulated in Central Hudson by relegating certain portions oftheir preceding language to the status of dicta. Positioning to holdthe least restrictive means test inapplicable in the commercialspeech context, the Court stated:There are undoubtedly formulations in some of our cases that sup-missible as solicitation).213. See supra note 199 and accompanying text.214. While the Shapero decision had a significant impact on the legal profession,the Kentucky Supreme Court denied the respondents claim for attorney's fees ex-pended in his appeal before the United States Supreme Court. Shapero v. KentuckyBar Ass'n, 57 U.S.L.W. 3769 (U.S. May 23, 1989). In denying respondent's claim forfees, the court reasoned that jurisdiction to grant or deny permission to send adver-tising lay with the Kentucky Attorneys Advertising Commission. Id. Since respondentfailed to appeal the Commission's adverse ruling against him personally, he could notclaim fees under 42 U.S.C. 1988. His appeal to the United States Supreme Courtmerely concerned an advisory opinion that did not deprive him of any rights securedby the federal Constitution, within the meaning of 42 U.S.C. 1983. Id.215. __ U.S. - 109 S. Ct. 3028 (1989).216. The specific purported violation of the school's regulations was a "Tup-perware"-type home products party held in a dormatory room. Id. at 3030.1990]MAINE LAW REVIEWport this view-for example, the statement in Central Hudson it-self that "if the governmental interest could be served as well by amore limited restriction on commercial speech, the excessive re-strictions cannot survive." We have indeed assumed in dicta thevalidity of the "least restrictive means" approach.2 17To bolster a "more flexible meaning for the Central Hudson test,"the SUNY Court looked to prior cases that stated that restrictionson commercial speech be "narrowly drawn" and "no more extensivethan necessary to further substantial interest."21 8 The Court thenadvocated a looser interpretation of the word "necessary." TheCourt noted that a prior holding had likened the application of theCentral Hudson test to the application of the test to validate time,place and manner restrictions.21 The latter did not require a leastrestrictive means analysis, but only that restrictions be 'narrowlytailored' to serve a significant government interest.2 20 Therefore, themajority believed it would be incompatible to apply a more rigidstandard to commercial speech. The Court asserted that in evaluat-ing restrictions on commercial speech, its decisions require thefollowing:a "'fit' between the legislature's ends and the means chosen to ac-complish those ends,"-a fit that is not necessarily perfect, but rea-sonable; that represents not necessarily the single best dispositionbut one whose scope is "in proportion to the interest served," thatemploys not necessarily the least restrictive means but . . . ameans narrowly tailored to achieve the desired objective.2 21In a dissenting opinion, Justice Blackmun stated that, in holdingthe least restrictive means test inapplicable to commercial speechcases, the majority had to recast contrary language from precedingdecisions . 2 "Indeed, to reach its result, the majority must charac-terize as 'dicta' the Court's reference to 'least restrictive means'analysis in [Zauderer,] although this reference seems integral to theCourt's holding that the ban on attorney advertising at issue therewas not 'necessary to the achievement of a substantial governmental217. Id. at 3033.218. Id. at 3033 (citing In re R.M.J., 455 U.S. 191, 203, 207 (1982)). See infranotes 179-89 and accompanying text for discussion of the In re R.M.J. decision.219. Id. (citing San Francisco Arts & Athletics, Inc. v. United States OlympicComm., 483 U.S. 522, 537 n.16 (1987)).220. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984).The Court also cited Shapero, noting that almost all of the state's restrictions were"substantialy excessive, disregarding far less restrictive and more precise means."Board of Trustees of State Univ. of N.Y. v. Fox, - U.S. -, 109 S.Ct. at 3034(citing Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 476 (1988)).221. Board of Trustees of State Univ. of N.Y. v. Fox, - U.S. -, 109 S. Ct.3028, 3035 (1989).222. Id. at 3038 (Blackmun, J., dissenting).[Vol. 42:369SOLICITATION BY LAWYERSinterest.' ,223 While the analysis of the case appears strained, SUNYcan be read as rendering the least restrictive means standard inap-plicable to regulations affecting commercial speech. Apparently, thefirst amendment can be satisfied by a fit between the state interestand regulation which is "reasonable," "in proportion to the interestserved," or "narrowly tailored to achieve the desired objective."IV. PERIMETERS OF LAWYERS' COMMERCIAL SPEECHA. Present Restrictions Impermissibly RestrictiveAs the Supreme Court considered lawyer commercial speech cases,the ABA responded by proposing ethical rules that it consideredcompatible with the Court's decisions.224 In response to Shapero,the ABA amended the Model Rules, condemning only in-person andlive telephone contact as impermissible solicitation, when the law-yer's pecuniary gain is a significant motive. 25 While the ABA at-tempted to implement rules to reflect the Supreme Court's man-223. Id. at 3038 n.1 (citing Zauderer v. Office of Disciplinary Counsel, 471 U.S.626, 644 (1985)). See infra notes 182-99 and accompanying text.224. After Bates' prohibition of blanket suppression of attorney advertising, theoffending disciplinary rules of the Model Code were amended to allow advertising,although numerous restrictions on the time, place and manner were included in therevision. See supra notes 94 & 138. Still later, it became evident in R.M.J. andZauderer that such strict regulation of language in lawyer advertising would also notstand. See supra note 96 and accompanying text. The ABA was moving toward theimplementation of the Model Rules to replace the Model Code. See supra note 96and accompanying text. The new advertising rule eliminated any delineated regula-tory language. In its place stood a general proscription that any such communicationnot be false or misleading. See supra notes 97 & 100.At the same time, the ABA responded to the Supreme Court decisions concerningattorney solicitation of clients. Historically, the bar had flatly prohibited attorneysolicitation. See supra notes 87-99 and accompanying text. Mailings to individualswith whom one did not have previous personal or professional contact constitutedimproper solicitation. See supra note 93. Then, in In re R.MJ., 455 U.S. 191, 207(1982), the Court held that general attorney mailings were advertising, the dissemina-tion of which could not be categorically prohibited under the first amendment. TheABA responded to the Court's rulings in the Model Rules. Mindful of the Court'scondemnation of in-person solicitation in Ohralik, the new Model Rules prohibitedsolicitation of individuals with whom there is no family or prior professional relation-ship and when pecuniary gain is a significant motive of the lawyer. The definition of"solicit" includes any communication (written or spoken) directed toward a specificrecipient In effect, this included targeted, direct mailings to prospective clients.However, excluded from this definition were general mailings. See supra note 98.225. See supra note 100. The comments to Model Rule 7.3 provide:Advertising and written and recorded communications which may bemailed or autodialed make it possible for a prospective client to be in-formed about the need for legal services, and about the qualifications ofavailable lawyers and law firms, without subjecting the prospective client todirect inperson or telephone persuasion that may overwhelm the client'sjudgment.MODEL RuLEs, supra note 97, Rule 7.3 comment 2 (1989).1990]MAINE LAW REVIEWdates, one may ask whether the Supreme Court's analysis, or thebar's implementation thereof, has been satisfactorily developed. Theprevious review of the Supreme Court's rationale in granting partialfirst amendment protection to lawyers' commercial speech revealsthat it is the free flow of truthful information to the public thatforms the primary justification for this extension of constitutionalprotection.22 Provided the questioned speech is not misleading orfalse, an attempt to regulate such speech must be no more extensivethan is necessary to achieve a substantial state interest that the reg-ulation directly advances.227 If one reflects on how the Court has an-alyzed lawyer "advertising," and then extends the Court's analysis astep further, the Court's rationale applies just as effectively to cur-rently impermissible "in-person solicitation."In Shapero, the Supreme Court struck down a ban on targeted,direct-mail solicitation because there was a less restrictive means ofdealing with the limited risk of overreaching and undue influenceassociated with this mode of communication.228 Targeted lettersconvey information to the individual upon which the person can re-flect and exercise personal choice as to whether or not to act uponthe information conveyed.229 A similar analysis can be applied justas satisfactorily to all forms of telephonic communication. As therecipient of a targeted letter has the option to read the letter and todispose of it, a phone call recipient can simply hang up the tele-phone at any time. While greater opportunities for abuse or mistakearguably may exist with live-telephone contact than with general ordirect-mail solicitation, a blanket prohibition on live telephone con-tact is not a formulation that is tailored narrowly enough to achievethe states' goals. Clearly less restrictive means for regulating theseabuses, short of a total ban on live telephone calls, exist. For in-stance, just as a state may require lawyers who send targeted, direct-mail solicitations to submit a copy of such letters to a state agencyand identify the mailing as "advertising, '23 0 the state could requirethat lawyers who elect to solicit by telephone file a report outliningthe projected content of their telephone contact, along with a follow-up report summarizing the exchange. Additionally, lawyers whochose to solicit by telephone may be required to record the conver-sation and explicitly to disclose the purpose of their telephone callin designated language when initially making contact with a pro-226. See Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985).227. See supra notes 163-70 and accompanying text. See supra notes 215-23 fordiscussion of recent modification of the Central Hudson "least restrictive means" testin Board of Trustees of State Univ. of N.Y. v. Fox, - U.S. -, 109 S.Ct. 3028(1989).228. Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 475-76 (1988).229. Id. at 475-76.230. Id. at 476. See In re R.M.J., 455 U.S. 191, 206 n.20 (1982).[Vol. 42:369SOLICITATION BY LAWYERSspective client.2 31 As a check against coercion, duress, or harassment,the lawyer would be required to invite the recipient of the call todiscontinue the communication at designated points in the conver-sation. Furthermore, the lawyer would be required to discontinuecontact at once should it become known that the prospective clientis not interested in being pursued.2 3The same rationale applied to live-telephonic contact can be fur-ther extended to the situation involving in-person solicitation. Justas the recipient of a targeted letter can throw the correspondenceaway, and the recipient of a telephone call can hang up, the personsolicited by a lawyer on a face-to-face basis has the option of walk-ing away from the conversation or asking the lawyer to leave. Whileopportunities for abuse or mistake may be present here, and the po-tential for overreaching or undue influence exists, more reasonablealternatives to an absolute prohibition on in-person solicitation canbe found so as to render categorical bans a disproportionately re-strictive measure under the Court's current constitutional analysis.A lawyer who chooses to solicit clients on an in-person basis couldbe required to notify a state entity of the purported contact, to re-port any subsequent meeting, and to record and retain initial meet-ings with prospective clients on tape. Should it become known to thelawyer that the prospective client may not want to be solicited, thelawyer would be required to discontinue contact immediately and toretain a record of that fact. Additionally, lawyers who solicit on anin-person basis could have their retainer agreements made subject toa lengthy recission right by the client. While any client may dis-charge a lawyer at any time, subject to an obligation to pay the rea-sonable value of the services rendered, the solicited client could re-tain the right to rescind the agreement without liability for adesignated period.2 33 Regardless of where on the spectrum one puts231. The 1989 version of Model Rule 7.3 provides for the labeling of written orrecorded communications as "Advertising Material." See supra note 100. TheZauderer Court indicated that it would be more lenient in its treatment of rules re-quiring disclosure of certain information than rules implementing prohibitionsagainst speech. See supra notes 192-94 and accompanying text.232. The Model Rules currently provide that even when not otherwise prohibited,a "lawyer shall not solicit professional employment from a prospective client ... if... the prospective client has made known to the lawyer a desire not to be solicitedby the lawyer .... " MODEL RuLEs, supra note 97, Rule 7.3(b)(1) (1989).233. Id. at Rule 1.16 comment (1989) (Declining or Terminating Representation).It has been suggested that consumers of legal services do not possess sufficient infor-mation regarding the price or quality of a lawyer's services so as to make use of a"cooling off" period of short duration. See Perschbacher and Hamilton, supra note202, at 273. While many clients may not reconsider an arrangement with a lawyeruntil the service is actually rendered, a cooling off period would still give consumers achance to reflect on their situation and perhaps seek additional advice. While not aperfect tool, when used in combination with regulatory review, it could well help fos-ter intelligent lawyer selection. See generally Note, Attorney Solicitation of Clients:1990]MAINE LAW REVIEWthe potential coercive force associated with in-person or live-tele-phone solicitation, the fact remains that such communication clearlyadvances the free flow of truthful information that the states seek toachieve. Because significantly less restrictive and more precise alter-natives exist to safeguard the states' concern that the public be pro-tected from the coercive force of a trained advocate, a categoricalproscription on in-person solicitation cannot be considered reasona-ble under either the least restrictive means analysis or the SUNYtest. It is not a means tailored narrowly enough to achieve the gov-ernment's goals. Blanket bans on live-telephone and in-person solic-itation are not in proportion to the state interest served.In his dissent in Bates, Justice Rehnquist stated that "once theCourt took the first step down the 'slippery slope' in [Virginia Phar-macy], the possibility of understandable and workable differentia-tions between protected speech and unprotected speech in the fieldof advertising largely evaporated. '23 4 This' prediction has come tofruition. When applying a standard of least restrictive means, onecan always devise a less restrictive alternative to blanket prohibi-tions on commercial speech. When applying a standard that fallsshort of least restrictive means, a standard requiring a dispositionthat is in proportion to the interest served, blanket prohibitions onin-person communication do not fit reasonably with the goal ofpreventing overreaching or undue influence. Taking this premise toits logical conclusion, any communication by a lawyer to a potentialclient should be permitted as long as it is not false or misleading,and does not involve coercion, duress, or harassment.In Shapero, Justice O'Connor's dissent eloquently addressed "theneed to reconsider Bates 2 35 and noted that Zauderer was "the cul-mination of a line of cases built on defective premises and flawedreasoning.'236 Focusing on the professionalism aspect, JusticeO'Connor wrote that membership in a profession "entails an ethicalobligation to temper one's selfish pursuit of economic success1,217and that restrictions on advertising and solicitation by lawyers "actas a concrete, day-to-day reminder to the practicing attorney of whyit is improper for any member of this profession to regard it as aProposed Solutions, 7 HoFsTR L. REv. 755 (1979). It has also been suggested thatwith the curtailment of prohibitions on direct attorney-client contact, forms of abusecould also be proscribed by "stringent control over contingent fee agreements" thatwould "require more equitable graduated fee formulas that bear some relationship tothe services performed and risks assumed." See Rhode, supra note 69, at 330.234. Bates v. State Bar of Arizona, 433 U.S. 350, 405 (1977) (Rehnquist, J.,dissenting).235. Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 487 (1988) (O'Connor, J.,dissenting).236. Id. at 480.237. Id. at 488-89. See also supra note 63.[Vol. 42:369SOLICITATION BY LAWYERStrade or occupation like any other." '238 Justice O'Connor believedpractices relating to lawyers' commercial speech are not a fit subjectfor constitutional adjudication and should therefore be left to thestate legislatures." 9 Feeling the lawyer commercial speech caseshave gone too far, Justice O'Connor would clearly like to see morerestrictions on lawyer advertising and solicitation, not less. However,it appears she foresees that the Court's present analytical guidelinescannot viably support a categorical ban on all in-person solicitousconduct. A lowering of the standard required in commercial speechcases from least restrictive means, to some lesser standard in SUNY,may well be an attempt by the Court to avert the constitutional de-mise of any categorical ban on lawyers commercial speech. Interest-ingly, Justice O'Connor was joined in her dissent in Shapero byChief Justice Rehnquist and Justice Scalia.24 0 These three Justices,who were part of the majority in SUNY, want to reconsider the en-tire line of legal advertising cases. If one-third of the Court believesthat regulation of lawyers' commercial speech should not comewithin the purview of the Constitution, the move away from theleast restrictive means standard in SUNY may be an attempt tobuoy the viability of categorical bans on in-person solicitation untilthe matter can undergo further study and perhaps be relegated tothe state legislatures. As the matter presently stands, the legal foun-dation upon which the lawyer advertising and solicitation cases restis clearly not a firm footing.While the Court may well be setting the stage for eliminating reg-ulation of lawyers' commercial speech from constitutional adjudica-tion, at present, restrictions on such speech are still subject to firstamendment scrutiny. However, even applying the Court's more per-missive standard enunciated in SUNY to categorical bans on in-per-son and live-telephone solicitation, clearly far less restrictive andmore precise means exist for safeguarding the underlying govern-mental interests. If one extends the implemented analysis and theexplicit holding of SUNY and Shapero, the 1989 amendments to theModel Rules are still impermissibly restrictive. Instead of merelymirroring the mandates of the Court, the Rules should extend the238. Id. at 490. Justice O'Connor states that "[t]he roots of the error in our attor-ney advertising cases are a defective analogy between professional services and stan-dardized consumer products and a correspondingly inappropriate skepticism aboutthe States' justifications for their regulations." Id. at 487.239. Id. at 485. Justice O'Connor asserts that "the States should have considera-ble latitude to ban advertising that is 'potentially or demonstrably misleading,' aswell as truthful advertising that undermines the substantial governmental interest inpromoting the high ethical standards that are necessary in the legal profession." Id.(citation omitted).240. Id. at 485. One may question whether some of the decisions of the Courtreflect the values of the Court, with the first amendment being molded to supportthese contentions.1990]MAINE LAW REVIEWanalysis of the Court to its rational conclusion. While the SupremeCourt has indicated that rules prohibiting in-person solicitation forpecuniary gain are permissible, that fact does not obligate the bar toembrace such a prohibition. Whether or not one agrees with the pro-priety of extending constitutional protection to lawyers' commercialspeech, under the Court's current analysis, a blanket prohibition onin-person and live-telephone contact of potential clients violates thefirst amendment. The bar should therefore implement the underly-ing rationale that the Court has imposed and eliminate restrictionson commercial speech short of that which is misleading, deceptive,or coercive.B. Negative Impact of Restrictions on BarIn addition to the first amendment problems surrounding lawyers'commercial speech, the bar's implementation of blanket prohibitionson solicitation places the small law firm and the solo practitioner ata disadvantage relative to the more established lawyer. In his dis-senting opinion in Ohralik, Justice Marshall noted "[n]ot only doprohibitions on solicitation interfere with the free flow of informa-tion protected by the First Amendment, but by origin and in prac-tice they operate in a discriminatory manner. ' 241 If we look at thepractical mechanics of law practice, established lawyers have longbeen permitted to engage in conduct that can be considered solici-tous. Under the Model Code, for instance, lawyers were permitted tomail announcement cards to personal friends, relatives, and peoplewith whom they had professional contact. 242 By interpreting the cat-egory of "personal friends" broadly, the established lawyer who hadnumerous club and social connections was at a distinct advantage;that lawyer had access to avenues for expanding prospective busi-ness contacts the less well-established lawyer did not 2 43 Unlike theModel Code, the Model Rules make no reference to "personalfriends" when discussing solicitation proscriptions, but instead pro-hibit contact with individuals "with whom the lawyer has no familyor prior professional relationship. ' 24 4 While the "personal friend"category has been eliminated, the new standard still works to an es-tablished lawyer's advantage because the phrase "prior professionalrelationship" may also be broadly interpreted. If a lawyer has previ-ously represented a business entity, one may ask whether that per-mits the lawyer to contact individuals associated with that business241. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 474 (Marshall, J., concurring).Justice Marshall went on to state that "[tihe impact of the nonsolicitation rules...is discriminatory with respect to the suppliers as well as the consumers of legal ser-vices." Id. at 475.242. See supra note 93.243. See supra note 175.244. See supra notes 98 & 100.[Vol. 42:369SOLICITATION BY LAWYERSas employees or equity owners. If a lawyer has represented an organ-ization, one may ask whether that permits the lawyer to contact in-dividual members of the formerly represented group. In essence, alawyer has probably never been disciplined for in-person solicitationof a corporate vice president during a round of golf.2 'The current ethical rules may in fact be viewed as an expressionof the need to protect various interest groups. Assuming that stateswish to use their rules to protect the interests of the potential clientpopulation rather than the interests of lawyers, 240 they may employprophylactic measures short of categorical prohibitions to accom-plish this goal. Implementing less restrictive prohibitions would alsohave a direct and beneficial impact on the profession. By permittingall advertising and solicitation short of that which is false, mislead-ing, or coercive, the public would be better informed. The professionwould thereby equalize the competitive opportunities of the solopractitioner or small law firm with those long enjoyed by establishedpractitioners. Regardless of the motivation behind the rules of theself-regulated legal profession, the impact of the nonsolicitationrules falls on the providers of the service 4 7 as well as the recipients.C. Negative Impact of Restrictions on SocietyEarly in the history of lawyering, solicitation was naturally quel-led by the attitude that a controversy properly concerned only per-sons actually involved in the underlying transaction. Those whosought to intervene on behalf of another were looked upon with sus-picion and distrust.2 4 During the advent of the law as a profession,prohibitions against solicitation appeared as principles of etiquetteamong a small, homogeneous community of practitioners.24 0 Today,the self-regulated legal profession has chosen to implement rules ofconduct which prohibit certain types of solicitation.20 While theserules have questionable constitutional legitimacy, advertising andsolicitation actually perform similar informational functions. Lessrestrictive alternatives can protect the public from overreaching.The current rules may ultimately have a negative impact on society.Not only do the rules operate to keep information regarding legalservices from the public, 251 they also may be discouraging conduct245. See S. Gi.aRS & N. DORSEN. REGULATION OF LAWYER&S PROBLES OF LAw ANDETmcs 85 (2d ed. 1989).246. But cf. McChesney, supra note 160, at 102 (Deception rationale for uphold-ing bans on commercial speech may mask predatory reasons for traditionalrestrictions.)247. See supra note 241.248. See supra notes 14-51 and accompanying text.249. See supra notes 62-66 and accompanying text.250. See supra notes 98-100 and accompanying text.251. It is interesting to note that while members of the profession have criticizedtargeted, direct mailings to potential clients, recipients of letters have praised such a1990]MAINE LAW REVIEWthat the legal community should promote. Professor Monroe Freed-man gives the following example of such conduct:A woman arrives at a metropolitan courthouse holding a small boyby the hand. She speaks almost no English at all. She is intimi-dated by the imposing surroundings, and she is frightened and con-fused. All that she knows is that she is required to be some place inthat building because her son has been arrested or her landlord isattempting to evict her family. People brush by her, concernedwith their own problems. Then a man appears, smiles at her, andasks her in her own language whether he can help her. Throughhim, she meets and retains the man's employer, a lawyer whoguides her to the proper place and who represents her interests.252In this illustration, the attorney's actions subsequently were con-demned as solicitous conduct.25 3 Professor Freedman suggests thatthe lawyer involved should have been given a citation as "Attorneyof the Year," rather than have been subjected to disciplinary pro-ceedings and censure by the court.254 The Model Rules of Profes-sional Conduct seek to punish a lawyer's solicitous behavior when itis motivated by pecuniary gain.255 In Professor Freedman's example,a lawyer who wishes to get reasonable compensation for his servicestakes the risk that such actions may be characterized as impermissi-ble solicitation. The lawyer might not desire payment but ratherseek favorable publicity that may ultimately generate more futurebusiness, thereby reaping an indirect financial reward. Again, somemight argue that this also is an impermissible form of solicitation.2 0practice claiming it helped them easily select a lawyer who was knowledgeable aboutthe law in their particular case. See Cohen, Direct-Mail Legal Pitches Get Big Boost,Wall St. J., July 5, 1988, at 23, col. 3.252. M. FREEDMAN, LAWYERS' ETHICS IN AN ADVERSARY SYSTEM 118 (1975).253. Id.254. Id. Professors M. Schwartz and R. Wydick have presented Professor Freed-man's illustration, inquiring of students whether the lawyer's actions warrant con-demnation or commendation. See M. SCHWARTZ & R. WYDIK, PROBLEMS IN LEGALETHICS 59 (1988).255. One may question why the Court and the bar found such significance in thepecuniary gain of the lawyer as a component of impermissible solicitation. While theCourt considered the financial motivation of the lawyer in Ohralik, and lack thereofin Primus, condemning the former's contact with potential clients, it does not followthat the lawyer's pecuniary gain should be a necessary factor for a finding of im-proper solicitous behavior. See Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 458(1978). When a lawyer confronts a prospective client face-to-face, there is little justi-fication for determining the propriety of that encounter based on whether the lawyerwill get a fee. See also supra note 100.256. While raising the hypothetical for reflection, it is unlikely that the lawyerwould be condemned for this conduct. When referring to the pecuniary gain inPrimus, Justice Powell noted that the situation was not one "where the income of thelawyer who solicits the prospective litigant or who engages in the actual representa-tion of the solicited client rises or falls with the outcome of the particular litigation."In re Primus, 436 U.S. 412, 436 n.30. In the instant situation, the litigation at issue[Vol. 42:369SOLICITATION BY LAWYERSIn fact, some forms of in-person solicitation have a positive im-pact on society and the profession.257 Even though in-person solici-tation is a mode of communication that could be exploited by law-yers, provided available remedial measures were in place,distinctions between permissible advertising and impermissible so-licitation would be insignificant. This is not to suggest that directsolicitation of clients should be actively encouraged by the bar.Rather, in-person solicitation that is neither coercive nor harassingought not be prohibited.D. Reaction of the BarWithin the synergy of self-regulation, 258 and possibly with the goalof not losing that privilege, " the bar has been very sensitive to anynegative publicity. For instance, following the gas leak tragedy atthe Union Carbide plant in Bhopal, the public read how Americanlawyers flocked to India and took on record case loads of victims." 'In response, California trial attorneys voted to censure Americanlawyers who solicited Bhopal clients and the American Council ofTrial Lawyers passed a resolution condemning mass-disaster solici-tation. " More recently, in Dallas, Texas, the press characterizedlawyers as "vultures" following the 1985 crash of a Delta jet at theDallas-Fort Worth International Airport.2 2 As a result, representa-tives of the state bar of Texas took the aggressive preemptive ap-proach of frequenting the site of a 1988 plane crash at Dallas-FortWorth International Airport to advise victims of their rights and towould not affect the lawyer's income in and of itself. Also, if a contrary position weretaken, fear of its implementation (justified or not) could have an adverse effect on probono legal services.257. For example, while solicitation in the legal profession has not received anti-trust protection, it nevertheless has numerous procompetitive effects. One commenta-tor has noted.First, it promotes competition by enabling the large number of today's un-deremployed attorneys to obtain clients and stay in practice. This competi-tive pressure on the marketplace may result in increasingly high standardsfor the quality of legal work. In addition, solicitation, which permits thefree flow of information about the law between lawyer and consumer, mayenhance competition by increasing the demand from clients familiar withlegal issues and the legal process. Finally, solicitation can benefit the con-sumer by tailoring legal services and information to the needs and interestsof the individual.Maute, supra note 103, at 525 (footnotes omitted).258. See supra note 57.259. See Simet, Solicitation of Public and Private Litigation Under the FirstAmendment, WAss. U.LQ. 93, 105 (1978). See also Martyn, Lawyer Competence andLawyer Discipline: Beyond the Bar?, 69 GEo. L.J. 705, 707 (1981).260. See Rhode, supra note 69, at 319.261. Id. at 322-23.262. Vrazo, Cracking Down on Ambulance-Chasing by Lauoyers, Phila. Inquirer,Sept. 12, 1988, at 13-A, col. 1.1990]418 MAINE LAW REVIEW [Vol. 42:369monitor early arriving lawyers.2 3In addition to addressing lawyer response to mass disasters, thebar also has been active in establishing goals and aspirations for theprofession as a supplement to the professional rules mandated bythe states. Following the Shapero case, the American Board of TrialAdvocates passed a resolution calling direct-mail advertising by law-yers "unethical and in poor taste. 26 4 At the 1988 Annual Meeting ofthe ABA, the House of Delegates adopted aspirational goals for law-yer advertising in an effort to achieve advertisements that are effec-tive and reflect the professionalism of the legal community.2 s0 Addi-263. Green, Bar Groups Take on Ambulance-Chasers, Wall St. J., Sept. 28, 1988,at 27, col. 3.264. Wall St. J., Sept. 13, 1988, at 10, col. 3.265. See Aspirational Goals for Lawyer Advertising, Preamble, A.B.A. Comm. onAdvertising (1988). The ten "aspirational goals" adopted by the House of Delegatesare as follows:1. Lawyer advertising should encourage and support the public's confidencein the individual lawyer's competence and integrity as well as the commit-ment of the legal profession to serve the public's legal needs in the traditionof the law as a learned profession.2. Since advertising may be the only contact many people have with law-yers, advertising by lawyers should help the public understand its legalrights and the judicial process and should uphold the dignity of the legalprofession.3. While "dignity" and "good taste" are terms open to subjective interpre-tation, lawyers should consider that advertising which reflects the idealsstated in these Aspirational Goals is likely to be dignified and suitable tothe profession.4. Since advertising must be truthful and accurate, and not false or mis-leading, lawyers should realize that ambiguous or confusing advertising canbe misleading.5. Particular care should be taken in describing fees and costs in advertise-ments. If an advertisement states a specific fee for a particular service, itshould make clear whether or not all problems of that type can be handledfor that specific fee. Similar care should be taken in describing the lawyer'sareas of practice.6. Lawyers should consider that the use of inappropriately dramatic music,unseemly slogans, hawkish spokepersons, premium offers, slapstick routinesor outlandish settings in advertising does not instill confidence in the law-yer or the legal profession and undermines the serious purpose of legal ser-vices and the judicial system.7. Advertising developed with a clear identification of its potential audienceis more likely to be understandable, respectful and appropriate to that au-dience, and, therefore, more effective. Lawyers should consider using adver-tising and marketing professionals to assist in identifying and reaching anappropriate audience.8. How advertising conveys its message is as important as the message it-self. Again, lawyers should consider using professional consultants to helpthem develop and present a clear message to the audience in an effectiveand appropriate way.9. Lawyers should design their advertising to attract legal matters whichthey are competent to handle.SOLICITATION BY LAWYERStionally, the ABA adopted a model creed of professionalism,reflecting the growing concern over tactics encompassing a "win atany cost" mentality. 6The bar's efforts to counter negative conduct are reminiscent ofthe works of Hoffman and Sharswood in the nineteenth century.2"While the current bar is the antithesis of that in the last century asfar as its regulatory power, new inspirational guides continue to re-flect the bar's perceived need to preserve legal professionalism. Fewmembers of the profession will dispute the fact that misleading andcoercive solicitation is despicable and that it has no place in thepractice of law. However, the fact remains that not all in-person so-licitation falls within this category so as to negatively affect the pro-fession. The bar's aspirational goals to maintain and elevate the pro-fessional status of lawyers are indeed commendable. This persuasive10. Lawyers should be concerned with making legal services more affordableto the public. Lawyer advertising may be designed to build up client basesso that efficiencies of scale may be achieved that will translate into moreaffordable legal services.Id.266. See AB.A. SEC. ToRT & INs. PRAc. RE. 1988. A proposed example of a Law-yer's Creed of Professionalism was adopted by the American Bar Association andstates in part:PreambleAs a lawyer I must strive to make our system of justice work fairly andefficiently. In order to carry out that responsibility, not only will I complywith the letter and spirit of the disciplinary standards applicable to all law-yers, but I will also conduct myself in accordance with the following Creedof Professionalism when dealing with my clients, opposing parties, theircounsel, the courts and the general public.D. With respect to the public and to our system of justice:1. I will remember that, in addition to commitment to my client'scause, my responsibilities as a lawyer include a devotion to thepublic good.2. I will endeavor to keep myself current in the areas in which Ipractice and, when necessary, will associate with, or refer my cli-ent to, counsel knowledgeable in another field of practice.3. I will be mindful of the fact that, as a member of a self-regulat-ing profession, it is incumbent on me to report violations by fel-low lawyers of any disciplinary rule.4. I will be mindful of the need to protect the image of the legalprofession in the eyes of the public and will be so guided whenconsidering methods and content of advertising.5. I will be mindful that the law is a learned profession and thatamong its desirable goals are devotion to public service, improve-ment of administration of justice, and the contribution of uncom-pensated time and civic influence on behalf of those persons whocannot afford adequate legal assistance.Id.267. See supra notes 77-82 and accompanying text.1990]MAINE LAW REVIEWposture, which relies on learning and conscience, 6 8 has added signif-icance today. As this Article demonstrates, the rules containingblanket prohibitions of in-person solicitation lack firm foundation inboth a historical and legal context. Unlike aspirations, prohibitiverules against in-person solicitation violate the first amendment.V. CONCLUSIONIn the early years of lawyering, the solicitation of clients waslooked upon with suspicion and distrust. During the formative pe-riod of the legal profession, the solicitation of business was consid-ered both distasteful and unnecessary. This historical basis, coupledwith rampant commercialism of the legal profession during the nine-teenth century, prompted the leaders of the bar of this country toformulate rules and codes of conduct prohibiting the solicitation ofclients by lawyers.In recent years, the United States Supreme Court has had occa-sion to review certain of these rules that restrict the commercialspeech of lawyers. Generally, the Court has struck down rules thatcategorically prohibit either lawyer advertising to the general publicor written- communications directed toward specific individuals. TheCourt has reasoned that, provided the speech in question was notmisleading or deceptive, regulation of such speech must be no moreextensive than is necessary to achieve a substantial state interestthat the regulation directly advances. Concluding in essence thatreasonable alternatives short of categorical bans were available toachieve the state interests involved, the Court found blanketprohibitions on advertising and targeted mailings to violate the firstamendment. In addressing the commercial speech of lawyers, theCourt distinguished in-person solicitation from advertising or otherwritten forms of communication. Emphasizing the risk of overreach-ing and undue influence associated with in-person client contacts,the Court impliedly authorized states to forbid categorically for-profit, in-person solicitation as a prophylactic measure.A review of the Court's analysis in lawyer commercial speech casesreveals that one can always find some less restrictive alternatives toblanket prohibitions on speech. Even if a regulation need only evi-dence a reasonable fit with a substantial state interest, far less re-strictive means can be found. As with advertising and other writtenforms of communication, in-person solicitation serves the functionof educating and conveying information to individuals regardingtheir legal rights and available legal services. This flow of truthfulinformation to the public is just as beneficial to society as purelycommercial advertising, as long as it is not delivered in a fashion268. See Young and Hill, Professionalism, 35 FED. B.N.& J. 251, 252 (1988), re-printed in 93 CASE & CoM. 33, 34 (Nov.-Dec. 1988).[Vol. 42:369SOLICITATION BY LAWYERSthat is coercive or unduly burdensome. Alternative safeguards exist,short of categorical bans, to reduce the risk of overreaching in thein-person solicitation situation. Applying the analysis now imple-mented by the Court in lawyer commercial speech cases, the presentrestrictions on in-person and live-telephone solicitation violate thefirst amendment.In addition to lacking a firm foundation from a historical and con-stitutional perspective, the current ban on in-person solicitationnegatively affects society by eliminating an important channel forcommunicating public information. The nonsolicitation rules alsohave a negative impact on the legal profession itself by placing thesmall law firm and solo practitioner at a disadvantage to the moreestablished lawyer. An elimination of categorical bans on non-decep-tive, noncoercive in-person solicitation would allow lawyers to con-vey much needed information regarding legal services to an under-served public. States could then implement regulatory schemesrequiring explicit reporting and disclosure to safeguard against un-due influence and overreaching.The recent reaction of the bar to overt in-person solicitation bylawyers indicates a prevalent concern for the professional status ofthe law and the maintenance of appropriate conduct and decorumamong its members. While this posture is commendable and shouldbe encouraged, the fact remains that the present rules restricting thecommercial speech of lawyers are constitutionally impermissible.Whether or not one agrees with the appropriateness of in-person so-licitation, under the analysis which the United States SupremeCourt is presently implementing, the current rules that restrict suchsolicitation by lawyers violate the first amendment. Categorical banson direct contact by lawyers have a tenuous historical basis becausethey arose when the role of the legal profession in society was muchdifferent than today. Continued restrictions will only have a nega-tive effect on both the profession in particular and the society ingeneral.1990] |
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