Ficker v. Curran

• Decision Date: 18 October 1996
• Docket Number: Civil Action No. WMN-96-2057.
• Citation: 950 F.Supp. 123
• Parties: Robin K.A. FICKER v. J. Joseph CURRAN, Jr., Attorney General of Maryland.
• Court: U.S. District Court — District of Maryland

950 F.Supp. 123

Robin K.A. FICKER v. J. Joseph CURRAN, Jr., Attorney General of Maryland.

Civil Action No. WMN-96-2057.

United States District Court, D. Maryland.

October 18, 1996.

Robin K.A. Ficker, Bethesda, MD, pro se.

Alan E. D'Appolito, Upper Marlboro, MD, for plaintiff Natalie M. Boehm.

Carmen M. Shepard and Margaret Witherup Tindall, Baltimore, MD, and Attorney General of Maryland, for defendants.

MEMORANDUM

NICKERSON, District Judge.

Before the Court are cross-motions for summary judgment filed by Plaintiff Natalie M. Boehm (Paper No. 14), Plaintiff Robin K.A. Ficker (Paper No. 18), and Defendant J. Joseph Curran, Jr., Attorney General of Maryland (Paper No. 15). As the parties have represented that they do not intend to file any additional papers in support of their respective motions, the motions are now ripe for decision. Upon a review of the motions and the applicable case law, the Court determines that no hearing is necessary (Local Rule 105.6) and that Plaintiffs' motions for summary judgment will be granted.¹

I. BACKGROUND

This is an action for declaratory and injunctive relief challenging the constitutionality of a provision recently passed by the Maryland legislature and signed into law by Governor Parris N. Glendening regulating the solicitation of clients by attorneys. Senate Bill 14, 1996 Md.Laws ch. 669. Section 1(A)(2) of Bill 14 provides:

(A) A lawyer may not send a written communication, directly or through an agent, to a prospective client for the purpose of obtaining professional employment if the communication concerns: ...

(2) a criminal prosecution, or a prosecution of a traffic offense that carries a period of incarceration, involving the person to whom the communication is addressed or the person's relative, unless the charging document was filed more than 30 days before the date the communication is mailed.²

Pursuant to Section 10-606 of Maryland's Business and Occupations Code, any person who violates the new law may be found guilty of a misdemeanor punishable by a fine of up to $1,000 and/or incarceration for up to one year. The new law went into effect on October 1, 1996.

Plaintiff Ficker is a Maryland attorney who alleges that, until this bill went into effect, he obtained virtually all of his client base through direct-mail solicitation of those charged with jailable traffic offenses. Plaintiff Boehm owns and operates a company that produces and mails advertising materials from attorneys to persons who have been charged with crimes and jailable offenses. Both Ficker and Boehm challenge § 1(A)(2) as violative of their First Amendment rights of free speech and seek an order declaring § 1(A)(2) unconstitutional and permanently enjoining its enforcement.

This is a somewhat unusual case in that the Attorney General, the party now asking the Court to uphold the constitutionality of § 1(A)(2), is also the party that has provided the Court with perhaps the most compelling arguments against the constitutionality of that same provision. Before Governor Glendening signed the subject legislation, the Attorney General's office reviewed the bill for constitutionality and legal sufficiency. See Letter from Joseph Curran to Governor Glendening, dated May 16, 1996 (attached to Defendant's Motion as Exhibit 1). Upon review of the bill, the Attorney General's office concluded, "it is our view that the portions of the bill restricting contact with persons who have been charged with traffic and criminal offenses are invalid and should not be enforced." Id. at 1. Despite the infirmities of the portion of the bill that this Court now reviews, the Attorney General recommended that the Governor sign the legislation, based on the conclusion that the provisions of the bill regulating solicitation of personal injury plaintiffs was constitutional and the two provisions were expressly made severable.³

II. DISCUSSION

In arguing that § 1(A)(2) is unconstitutional, Plaintiffs rely heavily on the Supreme Court's decision in Shapero v. Kentucky Bar Association, 486 U.S. 466, 108 S.Ct. 1916, 100 L.Ed.2d 475 (1988). In Shapero, the Court addressed "the issue whether a State may, consistent with the First and Fourteenth Amendments, categorically prohibit lawyers from soliciting legal business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems." 486 U.S. at 468, 108 S.Ct. at 1919. Specifically, the plaintiff challenged a decision of the Kentucky Attorneys Advertising Commission refusing to allow him to send targeted letters to persons who recently had foreclosure suits filed against them placing those individuals at risk of losing their homes.

In concluding that such a categorical ban on targeted direct-mail solicitation was unconstitutional, the Court in a 5-4 decision reemphasized that "lawyer advertising is in the category of constitutionally protected commercial speech." Id. at 472, 108 S.Ct. at 1921 (citing Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977)). The Court then summarized the principles governing state regulation of attorney advertising:

Commercial speech 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. Since state regulation of commercial speech may extend only as far as the interest it serves, state rules that are designed to prevent the potential for deception and confusion may be no broader than reasonably necessary to prevent the perceived evil.

486 U.S. at 472, 108 S.Ct. at 1921 (citations and internal quotations omitted).

In arguing that § 1(A)(2) is constitutional, the Attorney General relies on the Supreme Court's more recent decision in Florida Bar v. Went For It, Inc., ___ U.S. ___, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995). In Went For It, the Court considered the constitutionality of a disciplinary rule, proposed by the Florida Bar and adopted by the Florida Supreme Court, prohibiting lawyers from sending direct-mail solicitations to victims and their relatives for thirty days following an accident or disaster. Distinguishing the case before it from prior decisions, including Shapero,⁴ the Court in another 5-4 decision found this thirty day ban to be a permissible regulation of commercial speech. In reaching that decision, the Court applied the three part "intermediate scrutiny" test outlined in Central Hudson Gas & Electric Corp. v. Public Service Comm'n of N.Y., 447 U.S. 557, 564-565, 100 S.Ct. 2343, 2350-2351, 65 L.Ed.2d 341 (1980): "first, the government must assert a substantial interest in support of its regulation; second, the government must demonstrate that the restriction on commercial speech directly and materially advances that interest; and third, the regulation must be `narrowly drawn.'" Went For It, ___ U.S. at ___, 115 S.Ct. at 2376.

As justification for the thirty day ban on solicitation, the Florida Bar asserted that it has a "substantial interest in protecting the privacy and tranquility of personal injury victims and their loved ones against intrusive, unsolicited contact by lawyers." ___ U.S. at ___, 115 S.Ct. at 2376. The Bar argued that this interest was related to the Bar's concern for the negative impact such conduct had on the public's image of the legal profession, which in turn, negatively affected the administration of justice. Id. The Supreme Court concluded that it had "little trouble" crediting these interests as "substantial." Id.

In finding that the Florida Bar had satisfied the second prong of the Central Hudson test as well, the Court noted that the Bar had submitted a 106-page summary of a two year study on lawyer advertising and solicitation, supporting the conclusion that "the Florida public views direct-mail solicitation in the immediate wake of accidents as an intrusion on privacy that reflects poorly upon the profession." Id. at ___, 115 S.Ct. at 2377. The Bar also submitted an anecdotal record that the Court found "noteworthy for its breadth and detail." Id. In addressing the third prong of Central Hudson, the Court found lacking arguments that less restrictive means were available to serve the purported interest and held that the thirty-day waiting period was "reasonably well tailored." Id.

In the instant action, the State asserts similar "substantial interests" to those advanced in Went For It. The Attorney General avers that § 1(A)(2) was passed as a means "to protect the privacy and tranquility of Maryland citizens from crass commercial intrusion during times of extremely personal stress and anxiety," and "to protect and promote the integrity of the legal profession." Defendant's Memorandum at 12. Thus, the Court must find that the subject legislation passes the first prong of the Central Hudson test.

To meet the second prong of Central Hudson, the State must demonstrate "that the challenged regulation advances the Government's interest in a direct and material way. That burden ... is not satisfied by mere speculation and conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree." Went For It, ___ U.S. at ___, 115 S.Ct. at 2377 (citations and internal quotations omitted). In arguing that § 1(A)(2) meets this standard, the Attorney General again attempts to parallel the arguments made by the Florida Bar in Went For It. The Court finds, however, for the reasons that follow, that a thirty day ban on direct-mail to individuals facing criminal prosecutions presents entirely different issues and interests than does a similar ban on solicitation of personal injury plaintiffs.⁵

In Went For It, the Florida Bar amassed considerable evidence that Florida citizens were offended at attorneys'...