Shapero v. Kentucky Bar Ass'n

• Decision Date: 26 November 1986
• Docket Number: No. 86-SC-335-KB,86-SC-335-KB
• Citation: 726 S.W.2d 299
• Court: United States State Supreme Court — District of Kentucky
• Parties: Richard D. SHAPERO, Petitioner, v. KENTUCKY BAR ASSOCIATION, Respondent.

Page 299

726 S.W.2d 299

Richard D. SHAPERO, Petitioner, v. KENTUCKY BAR ASSOCIATION, Respondent.

No. 86-SC-335-KB

Supreme Court of Kentucky.

Nov. 26, 1986.

As Modified March 27, 1987.

Donald L. Cox and Mary Janice Lintner, Lynch, Sherman & Cox, Louisville, for petitioner.

Bruce K. Davis, Director, Kentucky Bar Ass'n, Frankfort, for respondent.

WINTERSHEIMER, Justice.

This is a petition for review of Supreme Court Rule 3.135(5)(b)(i) which has been interpreted by the advertising commission to prohibit direct targeted mail advertising by lawyers.

The question is whether the rule violates the First and Fourteenth Amendments to the United States Constitution.

Shapero argues that the targeted direct mail advertising rule does not advance a substantial governmental interest and the rule is more restrictive than necessary in view of the holding of the United States Supreme Court in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 647, 105 S.Ct. 2265, 2280, 85 L.Ed.2d 652, 670 (1985).

Supreme Court Rule 3.135(5)(b)(i) provides:

A written advertisement may be sent or delivered to an individual addressee only if that addressee is one of a class of persons, other than a family, to whom it is also sent or delivered at or about the same time, and only if it is not prompted or precipitated by a specific event or occurrence involving or relating to the addressee or addressees as distinct from the general public.

In 1985, the United States Supreme Court in a plurality decision ruled that an attorney may not be disciplined for soliciting legal business through printed newspaper advertisements which contained truthful and nondeceptive information and advice regarding the legal rights of potential clients. Zauderer, supra.

Following the Zauderer decision, Shapero, a Louisville attorney, pursuant to SCR 3.135(6)(b), submitted to the Lawyers' Advertising Commission of the Kentucky State Bar Association, the blank form of a letter he proposed to send to potential clients who had a foreclosure suit filed against them. The advertising commission determined that the letter proposed is a violation of SCR 3.135(5)(b)(i) because it is a letter precipitated by a specific event or occurrence involving or relating to the addressee or addressees as distinct from the general public. The advertising commission did not find that the letter was false, misleading or deceptive. Thereafter, Shapero requested an opinion from the Ethics Committee of the Kentucky Bar Association about propriety of the proposed letter. The Ethics Committee disapproved the submitted form of direct-mail letter. Shapero then petitioned this Court for review of the Advisory Opinion and the rule which was granted.

The rule as now written which was interpreted by the Advertising Commission and the Ethics Committee to be in conflict with the interpretation of the United States Supreme Court of the First and Fourteenth Amendments to the United States Constitution as expressed in Zauderer should be deleted.

In that case, the United States Supreme Court determined that lawyer advertising is a form of commercial free speech protected by the First Amendment and that advertising by attorneys may not be subjected to blanket suppression. The specific cases involved newspaper advertising; this case involves direct targeted mail.

In re R.M.J., 455 U.S. 191, 102 S.Ct. 929, 71 L.Ed.2d 64 (1982), quoting Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977) holds that while misleading advertising may be prohibited entirely, the states may not place an absolute prohibition on certain types of potentially misleading information if the information also may be presented in a way that is not deceptive. The state may exercise its authority to regulate legal advertising only when it can assert a substantial interest and the interference with commercial free speech must be in proportion to the interests served. In re R.M.J., supra. The United States Supreme Court has struck down bans on legal advertising that include targeted direct mail advertising for nonpecuniary reasons. See In re Primus, 436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417 (1978).

The Ethics Committee cited Rule 7.3 of the Model Rules of Professional Conduct which were adopted by the American Bar Association several years before the United States Supreme Court's decision in Zauderer which prohibits solicitation for pecuniary gain. However, the Kentucky Ethics Committee did not determine that the proposed blank-form letter was misleading, potentially misleading, deceptive or false. The Model Rules have been proposed in Kentucky but never formally adopted.

The crux of the matter is whether the state has a substantial governmental interest that is directly served by prohibiting solicitation by direct targeted mailing sent to potential clients known to have a specific legal problem and whether the targeted direct mail may be prohibited because it is improper solicitation and the rule is in proportion to the governmental interest served.

In view of the...