McHenry v. The Florida Bar

Decision Date10 May 1994
Docket NumberNo. 93-2069,93-2069
Citation21 F.3d 1038
PartiesG. Stewart McHENRY, Went For It, Inc., a Florida Corporation, John T. Blakely, Plaintiffs-Appellees, v. THE FLORIDA BAR, Susan V. Bloemendaal, Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Barry Richard, Tallahassee, FL, for appellants.

Paul D. Kamenar, Washington, DC, for amicus curiae, Washington Legal Foundation/Allied Educational.

Bruce S. Rogow, Beverly A. Pohl, Ft. Lauderdale, FL, for appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before BLACK, Circuit Judge, DYER, Senior Circuit Judge, and ALAIMO *, Senior District Judge.

BLACK, Circuit Judge:

The question in this appeal is whether The Florida Bar's thirty-day ban on direct mail lawyer advertising soliciting personal injury and wrongful death clients violates commercial speech protections afforded attorney advertising under the First Amendment. The district court ruled that it does. We affirm.

I.

Subject to approval by the Florida Supreme Court, The Florida Bar (Bar) promulgates rules that regulate the manner in which Florida lawyers may contact prospective clients for the purpose of obtaining professional employment. See R. Regulating Fla. Bar 4-7.1 to -7.7 (Rules). The Rules generally prohibit lawyers from in-person, telephone, telegraph, or facsimile solicitation of prospective clients with whom the lawyer has no family or prior professional relationship. Id. at 4-7.4(a). 1 The Rules permit direct mail solicitation of prospective clients except under certain conditions, id. at 4-7.4(b)(1), and provide specific requirements that must be followed when lawyers solicit clients through the mail, id. at 4-7.4(b)(2). Client solicitation rules apply indirectly to lawyer referral services through the Bar's prohibition on lawyers accepting referrals from services that contact potential clients in a manner that would violate the Rules if the contact was made by a lawyer. Id. at 4-7.8(a)(1). 2

Appellee McHenry, a member of The Florida Bar when he filed this suit, regularly solicited personal injury and wrongful death clients via direct mail before being disbarred for acts unrelated to the facts of this case. 3 New rules regarding client solicitation by mail took effect in January 1991, 4 including a new rule that prohibits lawyers from using direct mail to solicit personal injury or wrongful death clients "unless the accident or disaster [for which representation is sought] occurred more than 30 days prior to the mailing of the communication." Id. at 4-7.4(b)(1)(A). 5 McHenry and Went For It, Inc. (WFI), a lawyer referral service owned by McHenry, sued the Bar to enjoin enforcement of Rule 4-7.4(b)(1)(A), asserting that, but for its prohibition, they would send such letters within thirty days of an accident or disaster. 6

McHenry's suit became moot when he was disbarred. WFI continued as a plaintiff because it alleged injury in fact from the indirect application of the thirty-day ban to it through Rule 4-7.8(a)(1). 7 WFI maintains that the thirty-day ban is an unconstitutional restriction on commercial speech in violation of the First Amendment. The Bar submits that the ban serves substantial governmental interests that justify the restriction on speech. In addition, the Bar maintains that the ban is a content-neutral time, place, and manner restriction on speech.

All parties agreed that there were no genuine issues of material fact for trial and submitted cross motions for summary judgment. The district court referred the case to a magistrate judge, who found that the thirty-day ban on direct mail solicitation of personal injury and wrongful death clients withstood constitutional scrutiny and recommended that summary judgment be granted in favor of the Bar. On review of the magistrate judge's report and recommendation, the district court disagreed. It held that the ban violated constitutional protections of free speech and granted summary judgment in favor of WFI. 808 F.Supp. 1543.

II.

In 1977, the Supreme Court first ruled that states could not prohibit certain truthful advertising by lawyers concerning the availability and price of legal services. Bates v. State Bar, 433 U.S. 350, 384, 97 S.Ct. 2691, 2709, 53 L.Ed.2d 810 (1977). Subsequently, the Supreme Court has held that states may ban completely a lawyer's in-person solicitation of clients to prevent the potential for overreaching, undue influence, and intimidation on members of the public that is present when "a professional trained in the art of persuasion, personally solicits an unsophisticated, injured, or distressed lay person." Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 464-68, 98 S.Ct. 1912, 1923-25, 56 L.Ed.2d 444 (1978). States may not, however, ban outright the use of direct mail by attorneys to solicit clients known to be in need of legal services. Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 473, 108 S.Ct. 1916, 1921-22, 100 L.Ed.2d 475 (1988).

Today, "[l]awyer advertising is in the category of constitutionally protected commercial speech." Id. at 472, 108 S.Ct. at 1921. As such, lawyer advertising "that is not false or deceptive and does not concern unlawful activities ... may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest." Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 638, 105 S.Ct. 2265, 2275, 85 L.Ed.2d 652 (1985). In further defining the connection between the means chosen to advance the government interest in regulating commercial speech and the interest itself, the Supreme Court has explained that the means must simply fit:

a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served; that employs not necessarily the least restrictive means but ... a means narrowly tailored to achieve the desired objective.

Board of Trustees v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 3035, 106 L.Ed.2d 388 (1989) (citation and internal quotation omitted). Because there is no suggestion that Appellee's proposed direct mail solicitations will be false or deceptive, the Bar must demonstrate that its thirty-day ban serves a substantial government interest and is narrowly tailored to achieve that interest.

The Bar submits that two substantial governmental interests are served by the thirty-day ban: (1) protecting persons traumatized by recent injury to themselves or members of their family who are likely to be in a state of mind which inhibits objective evaluation of a personalized solicitation from a lawyer, and (2) protecting the personal privacy and tranquility of persons who were themselves, or whose loved ones were, recent victims of personal injury or death. We conclude that neither of these asserted interests justifies a thirty-day ban on otherwise constitutionally protected direct mail advertising by attorneys.

A.

In Shapero, the Supreme Court rejected the assertion that a state could ban truthful, direct mail solicitation of persons overwhelmed by legal troubles because their capacity to exercise good judgment in selecting a lawyer was assertedly impaired. 486 U.S. at 474, 108 S.Ct. at 1922. In that case, the Kentucky Bar Association denied approval of a truthful letter that an attorney proposed to send to potential clients he learned had a foreclosure suit filed against them. Id. at 469, 108 S.Ct. at 1919. The Court first noted that Kentucky could not constitutionally prohibit the attorney from sending a nearly identical letter, suggesting his services if the need should ever arise, to an at-large audience not known to need representation. Id. at 473, 108 S.Ct. at 1921. Turning to the targeted nature of the solicitation, the Court explained that "the First Amendment does not permit a ban on certain speech merely because it is more efficient." Id. at 473, 108 S.Ct. at 1922.

The Court further recognized that persons overwhelmed to the degree that their capacity for good judgment is impaired would have the same impairment whether evaluating an attorney's newspaper advertisement, a general solicitation letter, or a targeted solicitation letter. Id. The Court thus concluded that "[t]he relevant inquiry is not whether there exist potential clients whose 'condition' makes them susceptible to undue influence, but whether the mode of communication poses a serious danger that lawyers will exploit any such susceptibility." Id. Targeted direct mail advertising, the mode of communication in Shapero and in this case, " 'poses much less risk of overreaching or undue influence' than does in-person solicitation." Id. (quoting Zauderer, 471 U.S. at 642, 105 S.Ct. at 2277).

As the Court pointed out, a letter does not present " 'the coercive force of the personal presence of a trained advocate' or the 'pressure on the potential client for an immediate yes-or-no answer to the offer of representation.' " Id. Letter recipients can merely avert their eyes to avoid bombardment of their sensibilities, put the letter in a drawer to consider or ignore later, or simply throw the letter away. 8 Id. 486 U.S. at 475-76, 108 S.Ct. at 1923. Given the greatly reduced potential for coercion presented by a letter, the Court held that Kentucky's total ban on direct mail advertising was an unconstitutional restriction on commercial speech. Id.

While all the potential clients targeted in Shapero were assertedly unable to exercise unimpaired judgment due to the overwhelming nature of pending foreclosure litigation, some of the potential clients in this case are assertedly overwhelmed by different circumstances, such as injury to themselves or family members, or even the loss of a loved one. 9 The cause of the potential client's assertedly impaired judgment, however, is inconsequential to our inquiry under Shapero. The relevant inquiry is the mode of communication. ...

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  • Florida Bar v. Went For It Inc.
    • United States
    • United States Supreme Court
    • June 21, 1995
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    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 10, 1995
    ...had alleged that "but for the prohibition, he would seek clients through personal solicitation." 14 Likewise, in McHenry v. The Florida Bar, 21 F.3d 1038 (11th Cir.1994), cert. granted, --- U.S. ----, 115 S.Ct. 42, 129 L.Ed.2d 937 (1994), this court permitted McHenry, a Florida lawyer, to c......
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