Kim Y. Oldham. "LET ME REPRESENT YOU!" FLORIDA BAR v. WENT FOR IT, INC.: SUPREME COURT SUCCUMBS TO STATE REGULATION OF LAWYER ADVERTISING, 4 CommLaw Conspectus 83 (1996)

Advertising activity among members of the legal profession has grown more popular as a marketing tool over the past twenty years. <=2> n1 Lawyers no longer simply place advertisements in newspapers and the Yellow Pages. <=3> n2 Now, they rent billboards, send out mass mailings, and broadcast radio and television commercials. <=4> n3 In particular, the use of targeted, direct-mailings <=5> n4 to individuals known to have an imminent legal need substantially increased during the 1980's and continues to be a common medium for lawyer advertising. <=6> n5

Today, lawyers are becoming more innovative and more aggressive in their attempts to solicit clients. <=7> n6 Consequently, states are becoming more concerned with the extent to which lawyers should be allowed to reach out to individuals through various methods of advertising. <=8> n7 The issue arises, however, of whether permitting states to regulate lawyer advertising constitutes an unwarranted suppression of commercial speech. <=9> n8

Prior to the mid-1970's, the First Amendment of the United States Constitution did not include commercial speech under its umbrella of protection. <=10> n9 It was not until 1976 that the United States Supreme Court recognized the informational function of commercial speech and granted it constitutional protection. <=11> n10 Subsequently in 1977, the Court decided the landmark case Bates v. State Bar of Arizona, <=12> n11 in which the Court held that advertising by lawyers should be included in the category of commercial [*84] speech. <=13> n12 The ruling in Bates, however, was narrow and the degree to which states may regulate advertising by lawyers has been a recurring issue before the Court. <=14> n13 Essentially, the cases stemming from Bates have circumscribed state regulation of lawyer advertising so as to prevent in-person solicitation <=15> n14 and false or misleading communications. <=16> n15 However, Florida Bar v. Went For It, Inc., <=17> n16 the Supreme Court's most recent decision in the area of lawyer advertising, may provide a basis to permit state bars to impose further restrictions. <=18> n17

In Florida Bar, the Supreme Court upheld a proposed rule prohibiting lawyers from sending directmailings to injured victims and their families within thirty days following an accident or disaster. <=19> n18 Although the decision presently applies only to Florida, many state bar associations have already initiated efforts to enforce similar restrictions. <=20> n19

This Comment evaluates the Supreme Court's decision in Florida Bar and its ramifications on states' role in regulating lawyer advertising. Part I traces the history of the Court's past rulings regarding state restrictions on lawyer advertising. Part II discusses in detail the Court's rationale in upholding the thirty-day ban in Florida Bar. Part III analyzes the decision as a departure from the Supreme Court's established precedent and explores its implications. Part IV considers a less restrictive alternative to the Florida Bar's thirty-day waiting period to control the use of targeted direct-mailings. This Comment concludes that the Supreme Court's recent holding represents an open door that will stimulate states to limit the means by which lawyers may advertise.

I. PRIOR LAW: BATES AND ITS PROGENY

A. Advertising General Routine Services

The issue of whether the First Amendment protects the contents of lawyer advertising was not addressed by the Supreme Court until 1977 in Bates v. State Bar of Arizona. <=21> n20 The Court held that advertising by lawyers fell within the category of commercial speech and, therefore, may not be subject to blanket suppression. <=22> n21

In Bates, two lawyers established a legal clinic to provide routine services at modest fees to persons of modest income. <=23> n22 To attract more clients, the lawyers advertised their services and fees in a daily newspaper. <=24> n23 The state bar filed a complaint on the ground that the advertisement violated an Arizona disciplinary rule, which prohibited a lawyer from advertising his services through various means of commercial publicity, including newspapers. <=25> n24 Despite the lawyers' claim that the disciplinary rule infringed upon their First Amendment rights, a special committee's [*85] recommendation that both lawyers be sanctioned was upheld by the Arizona Supreme Court. <=26> n25 The lawyers appealed to the United States Supreme Court, where the state bar presented numerous justifications in support of its restriction. <=27> n26

First, the state bar argued that price advertising of even routine legal services tarnish the public image of lawyers. <=28> n27 Rejecting this assertion, the Court reasoned that because it is no surprise to most people that there is a charge for legal services, informing them that they may obtain such services at modest fees will not harm the reputation of the legal profession. <=29> n28

Second, the state bar claimed that because legal services are unique to an individual's needs, any type of lawyer advertising would be inaccurate and inherently misleading. <=30> n29 However, the Court determined that the prices referred to in advertisements tended to be for routine services at fixed rates, as in this case, and were not generally misleading. <=31> n30 The Court added that legal advertisements serve an important role in helping people make informed decisions about hiring a lawyer. <=32> n31 Although it held that truthful, nonmisleading advertising may not be subject to blanket suppression, the Court in Bates did recognize that the protection was not absolute, and that there may be "reasonable restrictions on the time, place, and manner of advertising." <=33> n32

B. In-Person Solicitation

The Supreme Court took advantage of the "time, place, and manner" restriction set forth in Bates to hold in Ohralik v. Ohio State Bar Association <=34> n33 that while lawyers may not be categorically banned from advertising, they may in fact be prohibited from engaging in direct, in-person solicitation. <=35> n34 In Ohralik, the bar association disciplined a lawyer who approached a recent car accident victim in the hospital and convinced her to sign an agreement stating that the lawyer would represent her. <=36> n35

Rejecting the lawyer's contention that his communication was similar to the advertising protected in Bates, the Court distinguished the case on two grounds. First, the Court reasoned that face-to-face solicitation by lawyers carried with it the danger of "overreaching, undue influence." <=37> n36 Unlike a printed advertisement, in-person solicitation exerts pressure upon the individual to respond immediately, without opportunity for reflection. <=38> n37 Second, the Court acknowledged that the states have an interest in maintaining high standards among licensed professionals. <=39> n38 Engaging in the intimidating solicitation of [*86] grief-stricken victims might erode the reputation of lawyers in the eyes of the general public. <=40> n39 Therefore, the Court drew the line on lawyer solicitation, permitting the Ohio State Bar to forbid in-person communication. <=41> n40

C. Printed Advertisement Addressing A Specific Claim

Notwithstanding the restriction on in-person solicitation, the Supreme Court continued to support First Amendment considerations in the spirit of the commercial speech doctrine. In Zauderer v. Office of Disciplinary Council of the Supreme Court of Ohio, <=42> n41 the Court declined to permit states to ban lawyers from placing advertisements in newspapers, which are addressed to specific persons with specific claims. <=43> n42 The lawyer in Zauderer placed an advertisement in various newspapers specifically addressed to women who suffered injuries from use of the contraceptive device known as the Dalkon Shield. <=44> n43 The Ohio Disciplinary Council filed a complaint against Zauderer alleging that his advertisement violated rules against self-recommendation and accepting employment from unsolicited legal advice. <=45> n44 However, the Supreme Court held that Zauderer could not be disciplined because the state bar's restrictions failed to meet the three-pronged test set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York. <=46> n45

Commercial speech is accorded less constitutional protection than are other forms of constitutionally guaranteed expression. <=47> n46 Consequently, state imposed restrictions on commercial speech, which is neither false nor misleading, <=48> n47 are analyzed with intermediate scrutiny under a three-part test. <=49> n48 First, the government must have a substantial interest that justifies the restriction. <=50> n49 Second, the restriction must advance that interest in a direct and material way. <=51> n50 Third, the regulation must be narrowly tailored to serve the state's interest. <=52> n51 Under the Central Hudson Gas & Electric test, prophylactic bans have consistently been viewed as overly broad and unconstitutional. <=53> n52

The Ohio Disciplinary Council asserted the same two interests which the Supreme Court found to be [*87] substantial in Ohralik's in-person solicitation preventing overreaching, undue influence and maintaining professionalism among lawyers. <=54> n53 Nevertheless, the Court refused to hold that the concerns regarding in-person solicitation were present when an individual merely reads an advertisement in a newspaper. <=55> n54 Following Bates, the Court ruled that restrictions on truthful, nondeceptive advertising were unconstitutional. <=56> n55

D. Targeted Direct-Mailings

In accordance with prior case law limiting state regulation of lawyer advertising, the Court in Shapero v. Kentucky Bar Association <=57> n56 broadened commercial speech protection to allow lawyers to solicit clients known to face particular legal problems through truthful, nondeceptive, direct-mailings. <=58> n57 The lawyer in Shapero sought approval by the Kentucky Attorneys Advertising Commission for a letter he intended to send to persons who recently had a foreclosure suit filed against them. <=59> n58

Althoughthe Commission did not find the letter to be false or misleading, it refused to approve it on the ground that the letter violated a then-existing disciplinary rule prohibiting lawyers from mailing advertisements "precipitated by a specific event or occurrence involving or related to the addressee . . . as distinct from the general public." <=60> n59 After the Kentucky Supreme Court affirmed the Commission's decision, the United States Supreme Court confronted the issue of whether a blanket prohibition of solicitation that is neither false nor misleading is consistent with the First Amendment. <=61> n60

Reemphasizing the distinction between face-toface and written communications, the Court held that Kentucky could not ban lawyers from sending truthful, nondeceptive letters to targeted individuals. <=62> n61 Like the printed advertisements in Bates and Zauderer, targeted letters do not present the same substantial state interests present with in-person solicitations. <=63> n62 The Court rejected the state bar's contention that this case was merely "Ohralik in writing" <=64> n63 subjecting potential clients to overreaching and undue influence that may impair their judgment. <=65> n64 On the contrary, the Court found that recipients of direct mail solicitations did not read the letters with the "coercive force of the personal presence of a trained advocate," <=66> n65 and if they did not want to read the solicitation, they had the option of merely "averting their eyes." <=67> n66

Furthermore, the Court stated that the relevant inquiry was "not whether there exist potential clients whose condition makes them susceptible to undue influence, <=68> n67 but whether the mode of communication posed a serious danger that lawyers will exploit any such susceptibility." <=69> n68 In Shapero, where the mode of communication was targeted direct-mailings, it was concluded that no such danger existed. <=70> n69

II. FLORIDA BAR v. WENT FOR IT, INC.

The Supreme Court has long recognized the importance of free speech in lawyer advertising, re- [*88] stricting the states' rights to regulate such advertising except in limited circumstances. <=71> n70 Now, at a time when lawyers are becoming more creative and more assertive, the Supreme Court has expressed a willingness to permit states to take additional action in order to curb abuses of lawyer advertising.

Shapero clearly stood for the principle that a state may not categorically ban truthful, non-deceptive, direct-mailings by lawyers. Yet the Supreme Court recently upheld a restraint on lawyer solicitation regardless of whether the communication was truthful or non-deceptive in Florida Bar v. Went For It, Inc. <=72> n71 In late 1990, the Florida Supreme Court adopted the Florida Bar's proposed rule prohibiting lawyers from sending direct-mail solicitations to victims and their relatives for thirty days following an accident or disaster. <=73> n72 G. Steward McHenry and his lawyer referral service, Went For It, Inc., filed an action challenging the rules as being violative of the First Amendment. <=74> n73

The United States District Court for the Middle District of Florida upheld the Florida Bar's disciplinary rule as constitutional under the First Amendment. <=75> n74 Relying on Bates and its progeny, the Court of Appeals for the Eleventh Circuit reversed. <=76> n75 The United States Supreme Court applied the three-part test from Central Hudson Gas & Electric and concluded, in a 5-4 decision, that despite established precedent, the disciplinary rules were constitutional. <=77> n76

The Court accepted two interests asserted by Florida Bar as substantial under the first prong of the test. First, the state has a substantial interest in "protecting the privacy and tranquility of personal injury victims and their loved ones against intrusive, unsolicited contact by lawyers." <=78> n77 Second, because the general public would view such intrusive conduct upon vulnerable victims as unprofessional, the reputation of lawyers would deteriorate. <=79> n78

The Court subsequently concluded that Florida Bar's detailed empirical data supported its contention that the thirty-day waiting period would in fact advance the state's interests in a direct and material way, thereby meeting the second prong of the test. <=80> n79 Finally, the Court rejected the argument that less restrictive means were available to serve the state purported interest and held that the thirty-day waiting period was "reasonably well-tailored." <=81> n80

Although Shapero struck down a ban on targeted direct-mailings, the Court distinguished the case in three respects. First, Shapero focused more on the issue of overreaching, undue influence, whereas the main concern in Florida Bar was avoiding an invasion of privacy. <=82> n81 Second, the ban in Shapero was a complete ban, regardless of the time or the recipient. In contrast, the Florida Bar rules only prohibited targeted, direct-mailings to injured accident victims and their families for thirty days. <=83> n82 Finally, unlike the Florida Bar, the Kentucky Bar Association in Shapero offered no concrete empirical data that direct-mail solicitations would result in any of the harms it alleged in support of its complete ban. <=84> n83

In dissent, Justice Kennedy <=85> n84 argued that the majority's opinion amounted to an unconstitutional censorship of commercial speech. <=86> n85 According to Kennedy, the majority's attempt to distinguish Shapero [*89] was unavailing. <=87> n86

Kennedy first argued that the mere potential for an invasion of privacy upon victims and their families during their time of grief was not a sufficient justification for suppressing speech. <=88> n87 Second, the "self-serving," "selective" data offered by the Florida Bar fails to establish either that a real danger exists or that the thirty-day ban would directly and materially help cure the danger. <=89> n88 Third, the ban was not reasonably tailored to advance the state's interests because it suppressed far more speech than was necessary. <=90> n89 As a result, victims who wanted and needed to begin assessing their legal positions were being deprived of communication that could be informative of their rights and options. <=91> n90

Kennedy also attacked the majority's attempt to shield the legal profession from public criticism <=92> n91 and responded that "real progress begins with more rational speech, not less." <=93> n92 He concluded that not only was the majority's decision a departure from prior decisions, "but also from the principles that govern the transmission of commercial speech." <=94> n93

III. NEW INTERESTS WILL SPUR NEW RESTRICTIONS

The Supreme Court's ruling in Florida Bar, while it may have only limited application, goes against the spirit of the modern commercial speech doctrine as it has been applied to legal advertising. In the past, as long as the advertisements or direct-mailings were truthful and not misleading, the Court rejected any arguments that state restrictions were necessary. <=95> n94 Notwithstanding its past decisions, the Supreme Court has now recognized that substantial state interests do exist to support restraints on even truthful, nonmisleading advertising.

A. Lawyers and Their Flagging Reputations

In the eyes of the legal community, the public's image of the legal profession has declined over the past ten years. <=96> n95 In particular, there has been a dramatic decline in the past two years as lawyer advertising has increased. <=97> n96 Although it did not alter the three-part test governing the regulation of commercial speech set forth in Central Hudson Gas & Electric, the Supreme Court has, for the first time, found that the reputation of the legal profession is a substantial state interest that justifies suppressing truthful, printed commercial speech. <=98> n97

In Bates, the Supreme Court expressly rejected the Florida Bar's assertion that allowing lawyers to advertise would harm the reputation of the legal pro- [*90] fession. <=99> n98 In the Court's opinion, "the postulated connection between advertising and the erosion of true professionalism was severely strained." <=100> n99 Furthermore, the Court acknowledged that members of other professions such as bankers and engineers advertise, yet they are not scrutinized by the public eye. <=101> n100

Similarly, in Virginia Pharmacy Board, the Court held that while Virginia has an interest in maintaining professional standards among its licensed pharmacists, the interest does not justify the suppression of drug price advertisements. <=102> n101 Although the state is free to "require whatever professional standards it wishes of its pharmacists . . . it may not do so by keeping the public in ignorance . . . ." <=103> n102

While the Court recognized in Ohralik that the reputation of the legal profession is a substantial state interest, <=104> n103 this recognition arose solely because of the sufficient link to the unique concerns present in the limited instances of face-to-face solicitations. <=105> n104 More than mailed solicitations, knocking on house and hospital doors of vulnerable, traumatized victims and pressuring them to seek legal representation comes closer to falling below acceptable levels of professional conduct and common decency. Here, the connection between the conduct and the erosion of true professionalism was not so strained. But it was in the unique case of in-person communication that the Court was willing to appreciate the preservation of the legal profession's image as justification for imposing state restrictions on lawyer advertising.

However, the Court in Florida Bar was willing to recognize the protection of the legal profession as justification for restrictions on direct-mailings. Because "preservation of the legal profession" is somewhat vague, it has a dangerous potential of being broadly interpreted to support a wide range of commercial speech restrictions. <=106> n105

B. Privacy and Tranquility

The Court also held that potential invasions of privacy present a substantial state interest which justifies upholding the thirty-day ban. <=107> n106 The initial question is whether the mere receipt of a directmailing actually results in an invasion of one's privacy. <=108> n107 A targeted letter may be viewed as resulting in no more of an invasion of privacy than that which occurs while reading a newspaper or a letter mailed to the public at large. <=109> n108 The Court reasoned that "a brief journey to the trash can" does little to prevent the recipient from being offended. <=110> n109 Thus, it appears the Court's main concern, more than preventing an invasion of privacy, was to protect a vulnerable reader from what may be considered offensive speech. <=111> n110

However, as Kennedy pointed out in his dissent, prior rulings have established that the government cannot obstruct the flow of mailings to protect recipients who might be potentially offended. <=112> n111 In Zauderer, the Supreme Court stated, "although some sensitive souls may have found appellant's advertisement in poor taste, it can hardly be said to have invaded the privacy of those who read it." <=113> n112 While some may view the thirty-day grace period as [*91] a way to curb a sleazy form of ambulance chasing, <=114> n113 others, including Kennedy, view it as denying access to legal representation to those who may not be offended.

Furthermore, any invasion of privacy that may occur from mailings sent by interested lawyers immediately after an accident is just as likely to occur from the immediate contact victims have with insurance companies. <=115> n114 Insurance adjusters are often quick in their attempt to persuade injured victims or family members to settle their claims before they have had a chance to seek legal representation. <=116> n115 Also, in an effort to gather relevant, fresh evidence, opposing counsel often begins immediate investigation in contemplation of litigation. <=117> n116 There is no reason to believe that an individual suffering a recent trauma is going to be any less irritated by the badgering of insurance adjusters and opposing counsel than by lawyers offering their services. Therefore, unless a similar ban is enforced against other groups, the thirty-day ban against lawyers will not succeed in protecting the privacy and tranquility of traumatized victims. <=118> n117

C. Impact of Florida Bar

The effects of the Florida Bar decision are already emerging. As in Florida, the Texas Legislature proposed to curb abuses of direct-mail solicitations by including in the state's Penal Code a provision preventing lawyers from sending targeted mailings to victims for the first thirty days following an accident. <=119> n118 A group of attorneys challenged the constitutionality of the provision on the ground that it hinders their communication with potential clients. <=120> n119

The United States District Court for the Southern District of Texas held that the provision was unconstitutional under the First Amendment as violative of commercial freedom of speech. <=121> n120 However, in light of Florida Bar, the United States Court of Appeals for the Fifth Circuit applied the three-part test from Central Hudson and reversed, concluding that the provision was constitutional. <=122> n121

Comparing these facts to Florida Bar, the Court of Appeals reasoned that Texas had a substantial interest in protecting the privacy of recently injured victims and their families from unsolicited contact by lawyers, and that the penal code provision directly and materially advanced that interest. <=123> n122 The challenging lawyers distinguished Florida Bar by arguing that, unlike Texas, the Florida Bar produced sufficient empirical data to establish that its interests were substantial. <=124> n123 Nevertheless, the Court of Appeals accepted the numerous complaints and testimonies regarding the effects of direct-mail solicitations as ample evidence to satisfy the first two prongs of the Central Hudson test. <=125> n124

The lawyers also attacked the third prong of the test, arguing that because accident victims in Texas may indicate on the accident report that they do not want to be solicited, the provision is not narrowly tailored to advance the state's interest in protecting their privacy. <=126> n125 Rejecting this contention, the Court of Appeals explained that the goal of the provision is to protect not only the victims, but also their family members, whose signatures do not appear on the accident report. <=127> n126

Following this framework, other states will most likely be successful in imposing similar thirty-day waiting periods for direct-mail solicitations. It is uncertain, however, as to how effective and flexible Florida Bar will be in supporting restrictions on other forms of advertising such as television commer- [*92] cials. <=128> n127 Because the Court emphasized that a wide range of alternatives to direct mailings are available to lawyers, <=129> n128 the decision may not support other types of restrictions. <=130> n129

However, Florida Bar does leave some room for flexibility. Although the decision is limited to targeted direct-mailings by personal injury lawyers, <=131> n130 Florida Bar at least established that state regulations are no longer limited to deceptive or misleading advertising as they have been for the past eighteen years. <=132> n131

IV. "ATTENTION: THE FOLLOWING CONTAINS ADVERTISING MATERIAL"

Florida's thirty-day ban is too broad, suppressing more speech than is necessary to achieve the purported interests. Therefore, it is appropriate to consider other means by which states could safeguard the public while still abiding by the First Amendment protections. A less restrictive alternative to banning targeted, direct-mailings may be a pre-screening of solicitations, by requiring lawyers to send a copy of their proposed letters to the state or local bar association. <=133> n132

However, this procedure poses three problems. First, pre-screening would require reviewers to distinguish "the truthful from the false, the helpful from the misleading, and the harmless from the harmful." <=134> n133 This task would not only be burdensome and time-consuming, but such a task would also require the hiring and instruction of an experienced, competent staff. <=135> n134 Second, there would inevitably be challenges that the advance review constitutes prior restraint because the review is being used to suppress constitutionally protected speech. <=136> n135 Third, the reviewing committee's speculation as to an intrusive invasion of privacy upon a person may not in fact be how the targeted recipient would react. <=137> n136 No individual can better assess his or her emotional state of mind than him or herself. Consequently, as Kennedy anticipated, those individuals who might welcome the information will be deprived of receiving it.

A second alternative would in fact provide a safeguard against a serious invasion of one's privacy and still allow the solicitation to get to those who need and want the information. Currently enforced in [*93] some states, the practice entails requiring the words "ADVERTISEMENT" or "ADVERTISING MATERIAL" to be included on the front of the envelope and at the top of the first page of the written solicitation, no matter when it is sent. <=138> n137 Upon receipt of the direct-mailing, an inquisitive victim or relative may read on, while a traumatized person may discard it.

The advertising label alerts readers and prevents solicitation offers from being automatic encroachments upon the private suffering of accident victims and their families. The Court in Florida Bar noted that while a recipient may simply throw away the solicitation, offense has already been taken as a result of the recipient having already read the letter in order to decide what to do with it. <=139> n138 The advertising label alleviates this problem by notifying the recipient of the nature of the communication without requiring any further reading.

At the same time, individuals, if they so choose, are free to read on and determine what alternatives and resources are available to them. Ideally, this method meets the concerns of both the majority and dissenting opinions, and is far less restrictive than is Florida's thirty-day ban. <=140> n139

V. CONCLUSION

Direct-mail solicitations, whether targeted or generalized, provide a means of ensuring access to legal representation to the public. In addition, by informing persons in need of legal representation as to the available resources, direct-mail solicitations serve to benefit those who are unaware of their options.

In recent years, however, states have been anxious to enforce new and improved disciplinary rules to shield the public from what the states consider to be distasteful and unprofessional behavior. Previously, First Amendment protections outweighed these concerns, but with the Supreme Court's most recent decision, the scale may begin to tilt in the other direction.

FOOTNOTES:

n1 A.B.A. COMM'N ON ADVERTISING, LAWYER ADVERTISING AT THE CROSSROADS 47 (1995) [hereinafter LAWYER ADVERTISING]. A 1993 Gallup Poll commissioned by the A.B.A. Journal revealed that 61% of surveyed A.B.A. members said their firms participated in some form of advertising. Id. at 52.

n2 When lawyers first began to explore advertising in the late 1970's, newspapers and Yellow Page directories were the most common media. Id.

n3 Id. Other marketing devices include Christmas cards and promotional items bearing the firm's name and the sponsoring of public events. HARRY J. HAYNSWORTH, MARKETING AND LEGAL ETHICS: THE RULES AND RISKS 31-40 (1990).

n4 An advertisement uses some form of mass media to convey a message to the public about a particular firm. LAWYER ADVERTISING, supra note 1, at 44. In contrast, a solicitation consists of direct contact via telephone, in-person, or through the mail. Id. Throughout this Comment, the term advertising will be used to refer to all modes of communication, including solicitations.

n5 Id. The 1993 Poll reported that seven percent of surveyed lawyers use direct-mailings. Id. at 52; Larry Bodine, Advertising Acumen, NAT'L L.J., Aug. 13, 1990, at 9. This increase in the use of targeted direct-mailings is due largely in part to the costeffectiveness of sending material through the mail, especially for new entrants into the legal profession and for small firms with low capital. See generally Al H. Ringleb et al., Lawyer Direct Mail Advertisements: Regulatory Environment, Economics, and Consumer Perception, 17 PAC. L. J. 1199 (1986).

n6 See, e.g., In re Anis, 599 A.2d 1265 (N.J. 1992)(lawyer sent a solicitation letter to the father of a student killed in a plane crash just one day after his remains were identified); Norris v. Alabama State Bar, 582 So.2d 1034 (Ala. 1991)(firm sent flower wreath to funeral home along with note offering legal services to family of 19-month-old decedent).

n7 See infra notes 17 and 19 and accompanying text.

n8 Commercial speech is defined as speech that is related solely to the economic interests of the speaker and its audience. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557, 561 (1980).

n9 Valentine v. Chrestensen, 316 U.S. 52 (1942)(holding that Constitution does not restrain government from banning the distribution of handbills bearing purely commercial advertising).

n10 Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976)(holding that commercial speech serves not only the interests of the speaker, but also assists consumers and furthers the societal interest of full dissemination of information).

n11 433 U.S. 350 (1977).

n12 Id. at 364.

n13 Since Bates, the Supreme Court faced the issue of state regulating lawyer advertising six times. Marcia Coyle, Ad Decision Could Spur a Rollback, NAT'L L.J., July 3, 1995, at A26. See Peel v. Attorney Registration & Disciplinary Comm'n, 496 U.S. 91 (1990); Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988); Zauderer v. Office of Disciplinary Council, 471 U.S. 626 (1985); In re R.M.J., 455 U.S. 191 (1982); In re Primus, 436 U.S. 412 (1978); Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1977).

n14 See Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978). See discussion infra part I.B.

n15 Bates, 433 U.S. 350; Zauderer, 471 U.S. 626. See discussion infra parts I.A and I.C.

n16 115 S. Ct. 2371 (1995).

n17 Coyle, supra note 13, at A26. Twenty-eight state and local bar associations joined in an amicus curiae brief asking the Supreme Court to give them more power to regulate lawyer advertising. A.B.A. COMM'N ON ADVERTISING, LAWYER ADVERTISING NEWS, June 21, 1995, at 1 (Special Supplement).

n18 115 S. Ct. at 2381. The purpose of the waiting period, as explained by Justice O'Connor in the majority opinion, is to "forestall the outrage and irritation with the state-licensed legal profession that the practice of direct solicitation only days after accidents has engendered." Id. at 2379.

n19 Paul M. Barrett, Split Court Lets States Curb Ambulance Chasers, WALL ST. J., June 22, 1995, at B1. Among the states with proposed amendments in the works are Arkansas, California, and New Mexico. Id. Some states such as Alabama, Colorado, New York, Michigan, and Illinois have created task forces to review rules regarding the regulation of lawyer advertising. A.B.A. Comm'n on Advertising, The Florida Bar Case Stimulates State Action, LAWYER ADVERTISING NEWS, Aug. 1995, at 1. The Rules of Professional Conduct Review Committee for the District of Columbia Bar is considering a post-accident proposal similar to Florida's. Inadmissible, LEGAL TIMES, June 26, 1995, at 3.

n20 433 U.S. 350 (1977).

n21 Id. at 383.

n22 Id. at 354. "Routine services" are those such as uncontested divorces and adoptions, simple bankruptcies, and changes of one's name. Id.

n23 Id. At the top of the ad in large bold print was the following: "DO YOU NEED A LAWYER? LEGAL SERVICES AT VERY REASONABLE FEES." Id. at 385.

n24 Id. at 356. The rule provided:

A lawyer shall not publicize himself, or his partner, or associate, or any other lawyer affiliated with him or his firm, as a lawyer through newspaper or magazine advertisements, radio or television announcements, display advertisements in the city or telephone directories or other means of commercial publicity, nor shall he authorize or permit others to do in his behalf.

Id. (quoting ARIZ. RULES OF PROFESSIONAL RESPONSIBILITY DR 2-101(B), 17A ARIZ. REV. STAT., p. 26 (Supp. 1976)).

n25 433 U.S. at 356. The Court also rejected a claim that the rule violated the Sherman Act because of its tendency to limit competition. Id.

n26 The Court does not use the terminology used in Central Hudson Gas & Electric to describe the three-pronged test for commercial speech restrictions in its opinion because Central Hudson Gas & Electric was not decided until 1980.

n27 433 U.S. at 368. The state bar argued that advertising would cause a loss of trust and confidence in lawyers not only by the general public, but also by clients who would view their lawyers as being motivated solely by profit. Id. For example, one of the most negative impressions about lawyers is that they are money-hungry. LAWYER ADVERTISING, supra note 1, at 69. Further, a juror in a personal injury case in Connecticut asked to be excused because he had "no respect for damage cases and the greedy lawyers who brought them." Gail Diane Cox, Battle on Legal Ads Comes Down to Class, NAT'L L.J., Aug. 10, 1992, at 45. When Bates was decided, lawyer advertising had long been ingrained in the minds of practitioners and the public as unethical and inappropriate. LAWYER ADVERTISING, supra note 1, at 48. Traditional notions of professionalism consisted of maintaining dignity in the pursuit of public service. Whitney Thier, In a Dignified Manner: The Bar, The Court, and Lawyer Advertising, 66 TUL. L. REV. 527, 529 (1991);see also infra part III.A.

n28 433 U.S. at 369. The Court stated that the public would likely view the legal profession negatively if it failed to advertise and reach out to the community. Id. at 370.

n29 Id. at 372.

n30 Id.

n31 Id. at 374. One of the goals of the A.B.A. is to assure access to legal services for people of low and middle income. LAWYER ADVERTISING, supra note 1, at 91. The Court also rejected the following justifications for upholding the ban in Bates: 1) adverse effect on administration of justice, 2) undesirable economic effects, and 3) adverse effect on the quality of service. 433 U.S. at 375-78.

n32 Id. at 383-84. For example, advertisements of illegal transactions are not worthy of First Amendment protection and may, therefore, be suppressed. Id.

n33 436 U.S. 447 (1978).

n34 Id. at 468. But see In re Primus, 436 U.S. 412 (1978). In Primus, a lawyer for the ACLU met with a woman who had been wrongfully sterilized as a condition of receiving Medicaid benefits. Id. at 415. The Court held that a non-profit organization's in-person solicitation of clients constituted protected political expression and, thus, may not be prohibited. Id. at 424-25.

n35 436 U.S. at 450. The victim later breached the contract and hired another lawyer to represent her during settlement negotiations, but paid one-third of her recovery to Ohralik in the settlement of his lawsuit against her for breach of contract. Id. at 452.

n36 Id. at 457.

n37 Id. In comparison with a solicitation letter, during an inperson confrontation, the effect may be to provide a one-sided presentation and encourage speedy decisionmaking. Id.

n38 Id. at 460. The Court emphasized the unique role of lawyers as officers of the court who are responsible for assisting in the administration of justice. Id. Although in Bates, the image of the legal profession was rejected as a justification, the Ohralik Court explained that where the ethical standards are linked to the service and protection of clients, the standards "do further the goals of "true professionalism.' " Id. at 461 (citing Bates, 433 U.S. at 368). See discussion infra part III.A.

n39 See discussion infra part III.A.

n40 The Model Rules of Professional Conduct provide:

A lawyer shall not by in-person or live telephone contact solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain.

MODEL RULES OF PROFESSIONAL CONDUCT Rule 7.3(a) (1989).

n41 471 U.S. 626 (1985).

n42 Id. at 647.

n43 Id. at 631. The Dalkon shield was alleged to have caused numerous pelvic infections resulting in infertility and miscarriages. Id. As a result of these ads, Zauderer received over 200 inquiries and initiated law suits on behalf of 106 women. Id.

n44 Id. at 647. DR 2-103(A) prohibits a lawyer from "recommending employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding the employment of a lawyer." DR 2-104(A) prohibits a lawyer from accepting employment from a layman to whom the lawyer has given unsolicited advice. Id. at 633.

n45 447 U.S. 557 (1980)(finding that Public Service Commission of New York's prohibition of utility company advertising that "promotes the use of electricity" is unconstitutional suppression).

n46 Id. at 562 (citing Ohralik v. Ohio State Bar Ass'n, 436 U.S. 412, 455-56 (1978)). The rationale behind granting commercial speech less protection is that speech promoting commercial transactions occurs in an area traditionally subject to government regulation. Id.

n47 See, e.g., the Model Rules of Professional Conduct, a communication is false or misleading if it:

a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; b) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or c) compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated.

MODEL RULES OF PROFESSIONAL CONDUCT Rule 7.1 (1989).

n48 447 U.S. at 564-65.

n49 Id. at 564. The Commission in Central Hudson Gas & Elect. did have a substantial state interest in the conservation of energy during a time when its demand was increasing. Id. at 568.

n50 Id. at 564. The Court found a direct link between prohibiting promotional advertisements and the conservation of energy. Id. at 569.

n51 Id. at 565 (citing First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 794-95 (1978)). The prohibition failed the third prong of the test because it suppressed more information than was necessary to advance the state's interest and it was not shown that a more limiting regulation would not be as effective. Id. at 570.

n52 See, e.g., Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (holding that state's categorical ban of targeted direct-mailings was unconstitutional); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (holding that state may not prohibit truthful, nondeceptive legal advertisements directed towards specific claims).

n53 471 U.S. at 641.

n54 Id. at 642. The Court explained that "a printed advertisement is a means of conveying information about legal services that is more conducive to reflection and the exercise of choice on the part of the consumer than is personal solicitation by an attorney." Id.

n55 Id. at 647; see also Peel v. Attorney Registration and Disciplinary Comm'n of Ill., 496 U.S. 91 (1990)(holding that lawyers are permitted to advertise that they are certified specialists in specific areas of the law); In re R.M.J., 455 U.S. 191 (holding that state may not prohibit lawyers from sending out announcement cards for the opening of a new office to individuals other than clients, former clients, friends and family members).

n56 486 U.S. 466 (1988).

n57 Id. at 473.

n58 Id. at 469. The letter included the following: "You may call my office anytime from 8:30 a.m. to 5:00 p.m. for FREE information on how you can keep your home. Call NOW, don't wait." Id.

n59 Id. at 469-70.

n60 Id. at 471. The Kentucky Supreme Court did, however, upon review, decide to replace Rule 3.135(5)(b)(i) with ABA Rule 7.3, which prohibits lawyers from soliciting business by mail or in-person, when the significant motive is pecuniary gain. Id. at 470.

n61 Id. at 475-76. See generally Victoria J. Kratzer, Shapero v. Kentucky Bar Ass'n: First Amendment Protection for Targeted Advertisements by Attorneys, 23 GA. L. REV. 545, 568 (1989)(reasoning that while the Court's decision is in accord with prior decisions restricting state regulation, further expansion of commercially protected speech is not likely).

n62 486 U.S. at 475.

n63 Id. at 474-75.

n64 Id.

n65 Id. at 475 (quoting Zauderer, 471 U.S. at 642).

n66 Id. at 47 (quoting Cohen v. California, 403 U.S. 15, 21 (1971)). See infra notes 107 and 111 and accompanying text.

n67 Connecticut has a restriction that bars sending mailings to people whose physical or mental health prevents them from making reasonable judgments about hiring a lawyer. CONN. RULES OF PROFESSIONAL CONDUCT Rule 7.3 (b)(1) (1986).

n68 486 U.S. at 474.

n69 Cf. Florida Bar, 115 S. Ct. 2371, 2372 (explaining that the danger with direct-mailings is not undue influence, but an invasion of privacy).

n70 See supra, part I.A.

n71 115 S. Ct. 2371 (1995).

n72 Id. at 2374. The rules were proposed after the completion of a two year study by the Florida Bar on the effects of lawyer advertising. The report included the fact that out of the 700,000 direct-mail advertisements sent out in 1989 by personal injury lawyers, 40% went to accident victims and their families. Id. Also included were letters from angry recipients who characterized the solicitations as "an invasion of privacy" and "annoying and irritating." Id. at 2377.

n73 Id. McHenry was disbarred in 1992 for sexual misconduct and John T. Blakely took his place during the course of this action. Id.; Coyle, supra note 13, at A26.

n74 Went For It, Inc. v. Florida Bar, 808 F. Supp. 1543 (M.D. Fla. 1992).

n75 Went For It, Inc. v. Florida Bar, 21 F.3d 1038 (11th Cir. 1994).

n76 115 S. Ct. 2371.

n77 Id. at 2376.

n78 Id. Before the lower courts, the Florida Bar also asserted that it had an interest in protecting vulnerable, grief-stricken individuals from overreaching, undue influence. 21 F.3d at 1042

43. Cf. Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 474 (1988) (stating whether condition of recipients may subject them to undue influence is not appropriate line of inquiry).

n79 115 S. Ct. at 2378. But see infra note 88 and accompanying text.

n80 Id. at 2380. Respondents proposed distinguishing recipients based on the severity of injuries and of grief, allowing direct-mailings to those whose pain and suffering was relatively minor. Id. Such lines, in the Court's opinion, would be difficult to draw. Id. Justice Kennedy, in his dissent, while criticizing this reasoning as irrelevant, pointed out that similar distinctions are made in criminal law regarding degrees of bodily harm. Id. at 2385 (Kennedy, J., dissenting).

n81 Id. at 2378.

n82 Id.

n83 Id. See generally Jeffrey S. Kinster, Targeted, DirectMail Solicitation: Shapero v. Kentucky Bar Ass'n Under Attack, 25 LOY. U. CHI. L.J. 1 (1993)(noting that state courts are ruling contrary to Shapero in an effort to punish distasteful conduct among soliciting lawyers).

n84 Justices Stevens, Souter, and Ginsburg joined in the dissenting opinion. 115 S. Ct. at 2381 (Kennedy, J., dissenting).

n85 Id. at 2383. According to Justice Kennedy, it is the public, not the state, who has the right and power to decide which ideas and information are deserving of their audience. Id. at 2386; see also Edenfield v. Fane, 113 S. Ct. 1792 (1993)(determining that the speaker and the audience assess the value of the information presented, not the government).

n86 115 S. Ct. at 2382 (Kennedy, J., dissenting).

n87 Id. at 2383; see also Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626, 648 (1985) (stating that the mere possibility that some members of the public might find advertising offensive does not justify suppressing it).

n88 115 U.S. at 2384 (Kennedy, J., dissenting). William Hornsby, staff counsel to the ABA's Commission on Advertising, agrees with Justice Kennedy and criticizes the research company hired by the Florida Bar, which was also the same company hired by the Iowa State Bar to prove that evidence existed to support advertising restrictions. Mary Hladky, Restrictions on Lawyer Advertising May Grow, DAILY BUS. REV., June 27, 1995, at A7. As one commentator noted, the survey "conspicuously neglected inquiry into the percentage of direct-mail recipients who were pleased to be alerted to their legal options . . . ." Bruce Fein, Lawyer Advertising Crackdown Looks More Like a Protectionist Masquerade, DAILY BUS. REV., July 28, 1995, at A28.

n89 115 S. Ct. at 2384 (Kennedy, J., dissenting).

n90 Id. at 2385 (Kennedy, J. dissenting). Kennedy argues that there is "no justification for assuming that in all or most cases an attorney's advice would be unwelcome or unnecessary when the survivors or the victim must at once begin assessing their legal and financial position in a rational manner." Id. On the contrary, it is at this urgent time that they would appreciate the information the most. Id.

n91 Id.

n92 Id.

n93 Id.

n94 Jan Crawford Greenburg, Supreme Court Upholds Limit on Lawyer Pursuit of Accident Victims, CHI. TRIB., June 22, 1995, section 1, at 5.

n95 LAWYER ADVERTISING, supra note 1, at 63. In a speech at the University of Tennessee, former Chief Justice Warren E. Burger expressed his concern with "the outrageous breach of professional conduct we see in the huckster advertising of some attorneys." Linda Greenhouse, At the Bar, N.Y. TIMES, June 23, 1995, at A23.

n96 LAWYER ADVERTISING, supra note 1, at 66. The most dramatic change occurred between 1991 and 1993, where public opinion of lawyers dropped almost twice as much as it did between 1976 and 1991. Id. at 65. Interestingly enough, those who had favorable opinions about lawyers were low income minorities most likely to have received information through legal advertising. Id. at 66.

n97 A.B.A. Comm'n on Advertising, supra note 19, at 2. Justice O'Connor has maintained this view since her dissent in Shapero, where she expressed that restrictions on advertising would serve an important role in the preservation of the integrity legal profession. Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 491 (1988) (O'Connor, J., dissenting).

n98 Bates v. State Bar of Ariz., 433 U.S. 350, 369 (1977). Dave Decker, president of the Illinois State Bar Association, believes that lawyer advertising has become sleazy, damaging the image of the profession. He stated, "efforts at soliciting people who have just been victimized by terrible injury or death are totally indefensible." Crawford Greenburg, supra note 94, at 1.

n99 433 U.S. at 368.

n100 Id.

n101 Virginia Pharmacy Bd. v. Virginia Citizens Consumers Council, 425 U.S. 748, 769 (1976).

n102 Id. at 770. As in later cases, Virginia Pharmacy Board declined to hold that commercial speech could never be regulated. Id.

n103 Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 460 (1978).

n104 Id. at 461.

n105 Coyle, supra note 13, at A26; Norry Miller, More Challenges Likely After Supreme Court Decision in Florida Attorney Advertising Case, LIBELLETTER, July 1995, at 10.

n106 Florida Bar v. Went For It, Inc., 115 S. Ct. at 2376.

n107 Eugene Volokh, a professor at UCLA Law School believes that to protect privacy by restricting speech, the intrusion into privacy should be a serious one. Preserving the Sanctity of the Mailbox, LEGAL TIMES, July 31, 1995, at 40. While the receipt of a single solicitation letter may be annoying, it is not a serious threat to privacy. Id. The Court of Appeals in Florida Bar reasoned that any invasion "occurs when the lawyer discovers the recipient's legal affairs, not when he confronts the recipient with the discovery." Went For It, Inc. v. Florida Bar, 21 F.3d 1038 (11th Cir. 1994) (quoting Shapero, 486 U.S. at 476).

n108 Id.

n109 115 S. Ct. at 2379.

n110 Preserving the Sanctity of the Mailbox, supra note 108, at 40.

n111 115 S. Ct. at 2383 (Kennedy, J., dissenting) (citing Bolger v. Drug Prod. Corp., 463 U.S. 60, 72 (1983)). In Bolger, a manufacturing company sent pamphlets out to members of the general public advertising its contraceptive devices. Although the Court realized that some recipients might find them offensive, the advertisements were deemed protected commercial speech under the First Amendment. Bolger, 463 U.S. at 71; see also Carey v. Population Servs. Int'l, 431 U.S. 678 (1977)(holding that where obscenity is not involved, offensiveness is not a valid justification for suppressing speech).

n112 Zauderer v. Office of Disciplinary Council of the Supreme Court of Ohio, 471 U.S. 626, 642 (1985).

n113 Preserving the Sanctity of the Mailbox, supra note 107, at 39.

n114 A Protected Bar, NAT'L L.J., July 3, 1995, at A20.

n115 Id.; see also Gary Taylor, Texas Solicitation Ban is Voided, NAT'L L.J., Feb. 7, 1994, at 3. In one instance similar to that of the lawyer in Ohralik, an insurance adjuster came to the hospital room of a victim just one day after a car accident. Id.

n116 Fein, supra note 88, at A28.

n117 In addition, because Florida Bar applies only to personal injury lawyers, a lawyer may still send out solicitation letters at any time to those who are thought to have an immediate need for legal representation, such as individuals on the verge of bankruptcy or who have been arrested for drunk driving. Hladky, supra note 88, at A1.

n118 TEX. PENAL CODE ANN. section 38.12(d)(2)(A) (West 1994). The provision is unique in that it attempts to criminalize abuses of direct-mail solicitations rather than impose disciplinary sanctions. Taylor, supra note 115, at 3.

n119 Moore v. Morales, 63 F.3d 358 (5th Cir. 1995). The provision also applied to physicians, surgeons, chiropractors, and private investigators, but no other group challenged the ban. Id. at 360. The lawyers also challenged proposed provisions which restricted access to accident reports for 180 days and prevented direct-mailings from being sent to criminal and civil defendants for 30 days. However, only the provision regarding the solicitation of accident victims was on appeal. Id. at 360.

n120 Moore v. Morales, 843 F. Supp. 1124 (S.D. Tex. 1993).

n121 63 F.3d at 361.

n122 Id.

n123 Id. at 362.

n124 Id. at 363.

n125 Id.

n126 Id. The court of appeals also noted that "narrowly tailored" does not necessarily mean the least restrictive means. Id.

n127 A case is currently pending in the Northern District of Florida challenging limitations placed on television ads, including a ban on dramatization. Gary Blankenship, Panel to Take Fresh Look at Ad Rules, FLORIDA BAR NEWS, July 15, 1995, at 5. Although the Florida Bar would like to abolish television ads altogether, it would be satisfied with restricting ads to include just a name, address, and phone number. John D. McKinnon, BAR LEADERS PUT LAWYERS' ADS ON TRIAL, Miami Herald, July 19, 1995, at 5B.

n128 Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2380 (1995). As argued by Justice Kennedy however, the fact that the Court acknowledged other means of getting important legal information to potential clients, it conceded "the necessity for the very representation the attorneys solicit and the State seeks to ban." Id. at 2385 (Kennedy, J., dissenting).

n129 A.B.A. Comm'n on Advertising, supra note 19, at 2. David Singer, a personal injury lawyer in Hollywood, views Florida Bar as a very narrow decision serving only to protect grief-stricken victims from an invasion of privacy and inapplicable to any restrictions on electronic media. Hladky, supra note 88, at A6. In contrast, the Florida Bar's opinion is that the recent decision's language has much broader applications. Id.

n130 The 30-day ban does not apply to Florida lawyers who send at least 400,000 solicitation letters each year to people who are arrested or are on the verge of bankruptcy. Id. at A1.

n131 Richard C. Reuben, Florida Bar's Ad Restriction Constitutional, A.B.A. J., Aug. 1995, at 20.

n132 See Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 476 (1988); Rex R. Perschbacher & Debra Bassett Hamilton, Reading Beyond the Labels: Effective Regulation of Lawyers' Targeted Direct Mail Advertising, 58 U. COLO. L. REV. 255, 274 (1987)(comparing pre-screening to that used by the Securities and Exchange Commission which requires the filing of proxy solicitations before distribution to security holders). Currently, Iowa requires that a copy of the communication be sent to the Commission on Professional Ethics and Conduct contemporaneously with the mailing. A.B.A. COMM'N ON ADVERTISING, Provisions of State Codes of Professional Responsibility Governing Lawyer Advertising and Solicitation (1994 Supp.). Kentucky offers lawyers the option of either conforming their communications to what is specifically allowed under the rules, or delivering a copy of their proposed communication to the Attorneys Advertising Commission for approval prior to mailing. Id.

n133 486 U.S. at 478 (quoting Zauderer v. Office of Disciplinary Council of the Supreme Court of Ohio, 471 U.S. 626, 646 (1985).

n134 Perschbacher & Hamilton, supra note 132, at 276. But see Shapero, 486 U.S. at 477 (determining that there is no evidence that the scrutiny of targeted solicitation letters will be more burdensome or less reliable than the scrutiny of advertisements).

n135 Perchbacher and Hamilton, supra note 133. However, commercial speech does not warrant full protection under the First Amendment. See, e.g., Zauderer v. Office of Disciplinary Council of the Supreme Court of Ohio, 471 U.S. 626, 646 (1985) (commercial speech is entitled to the protection of the First Amendment, albeit to protection somewhat less than that afforded non-commercial speech); Bolger v. Drug Prods. Corp., 463 U.S. 60, 64-65 (1983) (Constitution accords less protection to commercial speech than to other constitutionally safeguarded forms of expression).

n136 The Florida Bar opinion itself did not contain an example of what a restricted solicitation letter might look like because the suit did not arise out of a particular disciplinary action over a specific letter. Barret, supra note 19, at B1.

n137 See, e.g., ALASKA RULES OF PROFESSIONAL CONDUCT Rule 7.3 (c) (1993); HAW. RULES OF PROFESSIONAL CONDUCT Rule 7.3 (c) (1994)(a copy of the communication must also be forwarded to the Disciplinary Council); IOWA CODE OF PROFESSIONAL RESPONSIBILITY DR 2-101 (B)(4)(d) (1989)(the words must appear in red ink); LA. RULES OF PROFESSIONAL CONDUCT Rule 7.2 (b)(iii)(B) (1994)(the solicitation must be "plainly marked"); MINN. RULES OF PROFESSIONAL CONDUCT Rule 7.2 (f) (1993)(word must appear "clearly and conspicuously"). These provisions follow the Model Rules of Professional Conduct which provide:

Every written or recorded communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter, and with whom the lawyer has no family or prior professional relationship, shall include the words "Advertising Material" on the outside of the envelope and at the beginning and ending of any recorded communication.

MODEL RULES OF PROFESSIONAL CONDUCT Rule 7.3(c) (1989).

n138 Florida Bar v. Went For It, Inc., 115 S. Ct. 2371, 2379 (1995).

n139 However, this method would not be satisfactory to those who are of the opinion that the mere receipt of the solicitation is a serious invasion of their privacy.