Solicitation by Lawyers: Piercing the First Amendment Veil

SOLICITATION BY LAWYERS: PIERCING
THE FIRST AMENDMENT VEIL
by Louise L. Hill*
I. INTRODUCTION
Historically, the legal profession has considered the solicitation of
business inappropriate.' The profession has articulated this condemnation
of solicitation, which developed as a principle of good taste
among a small and homogeneous group of practitioners, 2 in the form
of specific rules prohibiting its members from engaging in certain
forms of conduct. 2 In recent years, the United States Supreme Court
has considered various rules that restrict the commercial speech of
lawyers. 4 Reviewing these proscriptive rules, the Court struck down
categorical bans on lawyer advertising 5 and targeted, direct mail solicitation
6 as violative of the first amendment. Because the free flow
of information to the public is the primary justification for protecting
commercial speech, 7 the Court upheld the general right of lawyers
to disseminate truthful, nondeceptive information and advice to
potential clients. Nonetheless, the Court indicated that rules prohibiting
in-person solicitation are permissible; they properly address
the increased risk of overreaching and undue influence associated
with face-to-face communication with potential clients. 8
A review of the analysis implemented by the United States Supreme
Court in its treatment of restrictions on lawyers' speech illustrates
the tenuous line that has been drawn between permissible and
impermissible solicitous conduct. The Court maintains that, provided
the speech in question is neither false nor misleading, its regulation
must be no more extensive than is necessary to achieve the
substantial state interest advanced by the regulation. Viewing lawyers'
commercial speech within this context, categorical proscrip-
* Associate Professor of Law, Widener University School of Law. For their time
and thoughtful comments, the author wishes to express her gratitude to her colleague
Professor Margaret V. Sachs, Widener University School of Law, and her former colleagues
Professor Gerald P. Moran, Professor Bruce A. Campbell and Father Robert
B. 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 notes
168-70 for discussion of "least-restrictive means" analysis with notes 215-23 for discussion
of later modifications to the analysis.

MAINE LAW REVIEW [Vol. 42:369
tions on in-person solicitation are not tailored narrowly enough to
prevent the perceived evils of overreaching and undue influence. Far
less restrictive and more precise means exist to achieve the stated
objectives. As the rules prohibiting in-person solicitation of clients
presently stand, they lack a firm historical basis and constitute a
violation of the first amendment.
This Article will trace the historical development of attitudes
about the impropriety of solicitation. It will then discuss the development
of first amendment protection for commercial speech, and in
particular, the United States Supreme Court cases in which restrictions
on the commercial speech of lawyers are specifically at issue.
The Article will then demonstrate that, under the present analysis
of the Supreme Court, existing categorical bans on direct in-person
solicitation of clients are both unconstitutional and detrimental to
society in general, and to the legal profession in particular.
I. PROSCRIPTIONS AGAINST SOLICITATION: A HISTORICAL
PERSPECTIVE
Traditionally, the legal profession has always frowned upon pursuing
clients overtly. Although the solicitation of business has been
considered improper, rules forbidding members of the legal profession
to solicit prospective clients are of relatively recent origin. 10
While guidelines and rules against solicitation have been in existence
for only one century, the belief that solicitation should be discouraged
arose during the formative period of the profession." The
roots of this attitude can be traced to the early historical development
of lawyers. 12
A. The Lawyer in the Classical Period
Both lawyers and proscriptions against solicitation have their
roots in ancient Greek and Roman law. 13 In ancient Greece, a controversy
was thought properly to concern only the judge and persons
actually involved in the underlying transaction. 14 Greek society had
strong feelings against outside interference in the legal process. Notwithstanding
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 LAW
OF 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 of
law 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 LAWYERS
gant to trial and render assistance. 15 In fact, a litigant who came
before a judge flanked by supporters was viewed as a person of
power and dignity. 1 A litigant not so supported was considered a
miserable wretch.
1 7
By the sixth century B.C., a friendless litigant was permitted to be
assisted by others under certain circumstances. 8 This intervention
on behalf of another, declared to be in the public interest, was still
considered exceptional. 9 Over time, this privilege of intervention
was intolerably abused. 2 0 The intervenor came to be knovm as a
"sycophant," an individual who voluntarily undertook the prosecution
of a matter, being motivated by money, prestige, or political
advantage. 2 A sycophant was a man maintaining quarrels as a
15. Id.
16. Id. at 49.
17. Id.
18. Id. Intervention on behalf of another was first permitted for an injured party
who could not effectively appear against a more powerful antagonist. Id.
19. Solon provided Athens with a written code of laws wherein he enabled "the
volunteer 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 GREEc
73-74 (1927) for a general discussion of Solon's criminal legislation. It is felt that the
inclusion of this statement implies that, until Solon's time, a prosecution for an offense
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 a
vague disparaging word for an unjustified accuser. Id. at 62-63. Simonides is credited
with stating that "as every lark has its crest, so in every democracy vill be found a
sycophant." 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 Aristophanes'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 sycophant
attempts to accuse him of selling goods from an enemy state. After the sycophant is
run off, the Megarian states: "What an evil this is in Athens!" D. MAcDowm±, supra
note 19, at 63 (quoting Aristophanes's Akharnians's 818-29). It is felt. however, that
Aristophanes's view of sycophants softened over time; he allowed a sycophant to defend
his activities in Wealth, his last surviving play:
Sycophant: 0 Zeus and gods! Must I put up with being treated ignominiously
by these men? How distressing that I, a worthy, patriotic man, should
suffer 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. 42:369
means of political agitation" or as a means to harass the other litigant.
Disinterested intervenors were looked upon with grave suspicion,
and as a result, they were often driven to invent or allege some
private interest in a matter in order to avoid a charge of sycophancy
or abuse of process. 23
As in the ancient Greek system, an aura of distrust continued to
surround the disinterested intervenor in the Roman system. 4 Even
though advocacy became a recognized profession during the Republic,
25 the advocate nevertheless had to maintain the pretense of a
personal connection with the proceedings. 2 " The sycophancy of
Good man: What makes you do that?
Sycophant: I volunteer.
Good man: How can you be a worthy man, you villain, if you make enemies
over matters that are not your business?
Sycophant: Isn't it my business to serve my own city as far as I can, you
idiot?
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 allow
anyone 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. Athenians
themselves were permitted to charge a man with sycophancy; however, the number of
men who could be so charged on one occasion was limited to three citizens and three
metics (resident aliens). Pursuant to a charge of sycophancy, there was a hearing followed
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 were
somewhat 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 from
753 B.C.), the Republic (dating from 510 B.C.), and the Empire (dating from 27
B.C.), the titles reflecting the different forms of government that prevailed. See generally
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 of
the 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 conduct
the proceeding himself, with the legal assistant merely advising or speaking on
behalf of the party. Id. The assistance rendered by advocates was presumed to be
gratuitous. R. POUND, supra note 25, at 52. Fees could not be imposed and contracts
for the payment of fees were not actionable. Radin, supra note 13, at 52. During the
time of the Republic, this was generally not an issue, for advocates were usually men
from wealthy families whose motives were political in nature. See R. POUND, supra
note 25, at 52-53. In the Empire, when the nature of the advocate changed and men

1990]
SOLICITATION BY LAWYERS
Greece was called "calumnia" under the Roman system. 27 The Roman
calumniator was roughly analogous to the Greek sycophant."
The calumniator also brought unnecessary or baseless actions," 0
which were either wholly unfounded or based on a trifling grievance.
30 Still present was the belief that a controversy properly concerned
only persons actually involved in the underlying transaction.
31 This attitude, along with the general distrust of disinterested
intervenors, naturally quelled solicitation by men seeking to render
legal assistance.
With the advent of Christianity, the whole litigation process itself
came to be disfavored. 2 Forgiveness was a fundamental Christian
virtue. Also, litigants who appeared in court were required to give
oaths contrary to the Christian faith. 33 The attendant suspicion
against hired assistants and advocates remained in the Empire; men
should rely only on themselves or their friends to secure redress.-
Because disinterested advocates possessed special skills in legal matters,
they would presumably manipulate the legal process, thereby
3 5
precipitating erroneous judgments.
came 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 as
maintainers, champertors, and barrators. Id. See infra note 51.
29. See J. THoMAS, TExTBOOK oF Rosi LAw 373 n.2 (1976); Radin, supra note
13, at 53.
30. The Theodosian Code (an official collection of imperial statutes beginning
with 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 a
just determination, attempt to bring the action again; (3) those who seek or
file claims in court for property, that does not belong to them; (4) those
who under the pretense of aiding the Treasury, plan to acquire the property
of other persons and do not suffer law-abiding citizens to be at peace; (5)
those who by bringing false charges against an innocent person undertake
to arouse the wrath of the governmental authority against them. Such persons
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 the
proceedings 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's
Ethical Veil, 13 WILAhmr L.J. 221, 223-24 (1977).
33. Radin, supra note 13, at 56. Justinian precluded ministers of the church from
pleading 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.

374 MAINE LAW REVIEW [Vol. 42:369
B. The Lawyer in English History
In England, as in early Greece and Rome, e representation in litigation
developed slowly and was regarded as exceptional. 3 7 Again, it
was customary for litigants in the neophyte English system to take
their friends and advisors with them to trial. 38 The perception that
lawsuits were intrinsically evil also carried over to medieval England.
36 In fact, trial in medieval England was itself perilous, 40 typically
being by ordeal, 41 by compurgation" 2 or by battle. 43 For example,
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 This
process was not devoid of representation, however, for in certain situations,
a person could retain a champion to intervene on his behalf.
45 This champion, who would intervene for hire, maintained a
36. 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" who
was 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 a
whole" 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 designated
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 one
pound red-hot iron three steps. The hand was then wrapped in cloth and examined
three days later. If the hand was blistered, rather than clean, it was fatal. Id. at 49. In
the latter, the ordeal of water, one who sunk was considered safe, one who floated was
lost. Id. at 48-49.
42. Compurgation was a mode of proof whereby an accused person could swear a
denial of the accusation and bring forward a group of oath-helpers (compurgators) to
swear that the accused's oath was "clean and without perjury." L. CURZON, ENGLISH
LEGAL HISTORY 13, 76 (2d ed. 1979). The oath was formalized; if one oath-helper used
a 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 but
was an ordeal imported by the Norman conquerors. F. MAITLAND & F. MONTAGUE,
supra note 13, at 49. An ordinance of William the Conqueror enabled Englishmen to
use 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, the
accuser undertook to "prove by his body" the truth of his charge; if he could not do
this by nightfall, he was deemed a perjurer. The object of the fight was not to kill his
opponent, but to make him cry "craven." Id. at 50.
45. L. CURZON, supra note 42, at 77. Initially, champions were used where the
appellant 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 permanently
maintained them. See 1 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 309
(3d ed. 1922).

1990]
SOLICITATION BY LAWYERS
fiction of a personal connection with the proceedings. He purported
to serve as a witness, asserting that he knew the truth of the cause
for which he was fighting. 46 The professional champion, motivated
purely by monetary reward, represented an unwarranted and wicked
interference in a legal proceeding and was disdained by society.' 7
As trial by battle became obsolete, 48 and the English judicial machinery
evolved and became more complicated, legal expertise lay in
the hands of a relatively small number of persons. 49 A class of legal
advisors who were experienced and competent in legal technicalities
developed from the friends and advisors who earlier had accompanied
litigants to trial5 0 These legal specialists, however, were still
looked upon with suspicion. This mistrust resulted not only from
the ancient prejudice against representation, but also from the perception
that these advocates encouraged resort to the law in general
and vexatious, profit-seeking lawsuits in particular. 1 Notwithstanding
this attitude, as the legal system developed in England and as
skill and learning were required in the process of the law, resort to
these practitioners, who now openly acted on behalf of others, naturally
followed. 2 It is from this medieval period 53 that we see the
legal profession as we know it today begin to take shape. In fact, the
origin of the law as a profession in England can be traced to this
46. 1 W. HOLDSWORTH, supra note 45, at 309 n. 4. Champions were officially recognized
by the Statute of Westminster I in 1275; the need to "swear as to their own
knowledge of the cause" for which they were hired to maintain was thereby eliminated.
Id. at 309.
47. Radin, supra note 13, at 59.
48. Trial by battle was not officially abolished in England until 1819, although by
then, 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 interference
with the course of justice were recognized: maintenance (helping another prosecute a
suit), champerty (maintaining a suit in return for a financial interest in the outcome),
and barratry (a continuing practice of maintenance or champerty). Zimroth, Group
Legal Services and the Constitution, 76 YALE L.J. 966, 969 (1967); Francis & Johnson,
supra note 32, at 222. Over time these interferences came to be viewed as lawyers'
transgressions, purportedly because of a "fundamental distrust of legal procedure
and of lawyers." Radin, supra note 13, at 66. However, the background against
which maintenance, champerty, and barratry emerged indicated that lawyers' interference
was not the target, but rather the interference by the person who employed
the lawyer. J. BAKER, Counsellors and Barristers, in THE LEGAL PROFESSION AND THE
COMMON LAW 109-110 (1986); Radin, supra note 13, at 65. While lawyers were sometimes
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 who
supported an army of retainers." Id. at 67.
52. See R. POUND, supra note 25, at 79-80. These practitioners, derived from the
early friends and advisors, were the forerunners of the barristers. H. DaNEa, supra
note 38, at 12-13.
53. See supra notes 59-66 and accompanying text for discussion of the Inns of
Court.

MAINE LAW REVIEW [Vol. 42:369
medieval period. 5 As the legal system evolved during the thirteenth
and fourteenth centuries, the law came to be regarded as a learned
profession, along with medicine and theology. 55 Members of the legal
profession were generally men from England's leading families" who
trained in the classics. 57 It was not characteristic for members of the
legal profession to be wholly dependent on their profession for their
livelihood. Lawyers therefore commonly had little regard for the
competition of the crafts. 5 "
Lawyers trained at the Inns of Court, 59 which were societies of
54. 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 light
of the unlearned past of the latter two, particularly in the United States, only the
theologians "are and always have been learned." The unlearned past of law and
medicine should remind us that "learning is an individual quality," not "inexorably
possessed by everyone who obtains professional status." Id. at 9. What entitles a person
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 preponderantly
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 standards
during 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 THlE
PROFESSIONS 29, 32 (1980). The ancient learned professions of law, theology, and
medicine were distinguishable from the craft and trade associations of the eleventh
and twelfth centuries by demarcations of society, economy, and education. While it
was customary for members of the professions to train in the classics, vocational societies
traditionally engaged in elaborate apprenticeship programs. The special training
that was concomitant with each craft or profession generated solidarity among the
various 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 occupations,
the early regulatory structures nevertheless served to focus an entity's expertise,
and thereby gave autonomy of control to the associations' individual practices.
See generally M. FRIEDMAN, CAPITALISM AND FREEDOM, 138-44 (1962); Gross, supra at
1010-11. Since that time, the adoption of a special set of rules to regulate members
has 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 professions
had social, economic, and educational differences, there were no significant distinctions
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 within
the legal profession. R. POUND, supra note 25, at 88-89. The Benchers and Readers
who lectured at the Inns were the most prestigious of the members. It is from the
former group that the sergeants-at-law were chosen. The next grade of membership
was the barristers, who could plead and argue cases, followed by inner barristers, who
were 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 that
manifested itself in trade guilds. W. WINDEYER, The Lawyers, in LECTURES ON LEGAL
HISTORY 137 (2d ed. 1957). However, the Inns of Court surpassed guilds in their organization
and discipline; they were similar to medieval universities. Id.

1990]
SOLICITATION BY LAWYERS
lawyers 80 responsible for the education and admission of members to
the profession. 61 In the English Inns of Court, the lawyers were few
in number and formed a close-knit group. 62 Many of them regarded
the profession as a public service. 3 They refused to compete for cli-
60. The term "lawyer" is generally associated with the "barrister." Within the
legal profession in England, a barrister is distinct from an attorney. While professional
attorneys began under the reign of Edward I, for the most part they did not
study in, nor were they members of, the Inns of Court. Attorneys were admitted to
practice and borne on the rolls of the common law courts. However, from the time of
the seventeenth century, attorneys and barristers functioned as separate and distinct
branches 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 a
monopoly of certain desirable aspects of the practice of law. Attorneys, constituting
the lower branch of the profession, were not as well organized and primarily were
relegated to drafting work. During the nineteenth century, Parliament consolidated
practitioners other than barristers intm the classification of "solicitors," who, subject
to 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 educational
or disciplinary bodies; their primary function became the examination of students
for admission to the upper branch of the profession. F. RoscoE. THE GROWrH
OF 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 the
professions. See P. PoUND, supra note 25, at 5; H. DRuNKER, supra note 38, at 5 ("A
duty of public service, of which the emolument is a by-product, and in which one may
attain the highest eminence without making much money" is a primary characteristic
that 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 of
A Profession, Soc. WORK 45 (July 1957) ("professions" possess systematic theory, authority,
community sanction, ethical codes, and culture). What purports to make a
profession 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 members
share values in common. (4) Its role definitions vis-a-vis both members
and 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 is
understood only partially by outsiders. (6) The community has power over
its members. (7) Its limits are reasonably clear, though they are not physical
and geographical, but social. (8) Though it does not produce the next
generation biologically, it does so socially through its control over the selection
of professional trainees, and through its training process it sends these
recruits through an adult socialization process.
Goode, supra, at 194 (citations omitted).
One professor of law defines a professional as one who "employs intellectual and
technical knowledge and skills that have been obtained by a substantial inve3tment
in education and training." Kissam, Antitrust Law, the First Amendment, and Professional
Self-Regulation of Technical Quality, in REGULATING THE PROFESSIONS 143,
144 (1980). An "ideal" professional is one who, along with developing a high degree of
knowledge, 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 21

MAINE LAW REVIEW
[Vol. 42:369
ents because of concern that to do so would destroy their intimacy
and reduce them to the status of tradesmen." Furthermore, it was
unnecessary for lawyers to overtly seek business since there were few
legal experts and many clients.6 5 Thus the principles of etiquette
and good taste, 06 along with the existence of readily available business,
appear to have tempered solicitation by lawyers during the
formative period of the profession.
C. The Lawyer in the United States
In colonial America, it was customary for some young men desiring
to be members of the legal profession to return to England to
study law at the Inns of Court.6 7 Due to their training and position
(1980). Campbell adds:
[The professional] must develop the ability to apply the special body of
knowledge that is unique to the professiofi[,] ... is part of a group that is
autonomous and claims the right to regulate itself(,] . . . recognizes and
affirms a code of ethics[,] ... exhibits a strong self-discipline and accepts
personal responsibility for actions and decisions.
Id. at 22-24.
Dean Roscoe Pound described a profession as "a group of men pursuing a learned
art as a common calling in the spirit of a public service-no less a public service
because it may incidentally be a means of livelihood.. . . Gaining a livelihood is incidental,
whereas in a business or trade it is the entire purpose." R. POUND, supra note
25, 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 PHASES
32 (1969); H. DRINKER, supra note 38, at 19 n.34. Of the four great Inns of
Court-Gray's Inn, Lincoln's Inn, Inner Temple, and Middle Temple-the latter is
said to have taken a leading part in the birth of the American nation. C. COMEOYS. A
SUMMER SOJOURN AMONG THE INNS OF COURT 125 (1922). Five men from the colonies
who received their professional training at Middle Temple signed the Declaration of
Independence (Edward Rutledge, Thomas Lynch, Jr., Thomas Heyward, Jr., Arthur
Middleton, and Thomas McKean), four additional Middle Templars were members of
the Continental Congress that adopted the Articles of Confederation (Joseph Reed,
John Dickinson, John Banister, and John Mathews), and five more men who received
training in law at Middle Temple sat at Philadelphia in 1776 and signed the Constitution
of the United States of America (William Livingston, Jared Ingersoll, John
Blair, John Rutledge, and Charles Pinckney). Id. at 2-3. The collateral positions that
these men held indicate the influence they had during the formative period of the
Republic:
Edward Rutledge - Governor of South Carolina
Thomas Heyward, Jr. - Judge in State of South Carolina
Thomas McKean - Chief Justice and Governor of Pennsylvania
Joseph Reed - President of Pennsylvania's Supreme Executive Council
John Dickinson - authored public letters signed "Pennsylvania Farmer"
John Mathews - Chancellor and Governor of South Carolina
William Livingston - Governor of New Jersey
Jared Ingersoll - Judge and Attorney General of Pennsylvania
John Blair - Justice of the United States Supreme Court

1990]
SOLICITATION BY LAWYERS
in their communities, these men helped to establish high standards
of education and conduct for the legal profession upon their return
to America. 6 8 As in England, the number of trained lawyers in colonial
America was small. The factors that discouraged solicitation
during the formative period of the profession in England carried
over to the colonies.
6 9
In America, there was the widespread perception among the public
that special privileges were accorded members of the professions.
70 Consequently, a hostility eventually developed toward the
regulated professions, particularly the legal profession." Bar associations,
perceived as the exclusive and secret trade unions of a
privileged class were deemed to be undemocratic and un-American.
72 As a result, states enacted significant legislation detrimental
to the legal profession that lowered or eliminated qualifications of
character, education, and training." 3 In fact, some states enacted
laws maintaining the inherent and natural right of every voter of
good moral character to practice law. 74 Other states assured their
citizens 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 Court
Charles Pinckney - Governor of South Carolina and United States Minister
to Spain
Id.
68. H. DINKER, supra note 38, at 19. A Professorship of Laws was established at
William and Mary College in 1779, at the College of Philadelphia (University of
Pennsylvania) in 1790, and at Columbia College in 1793. The School of Judge Reeve
of Litchfield, Connecticut was established in 1784. Under the Royall Bequest of 1781,
the Royall Professorship of Law was established at Harvard in 1815. Wickser, supra
note 60, at 393 n.5. While twenty-five of the fifty-six signers of the Declaration of
Independence and thirty-one of the fifty-five members of the Constitutional Convention
were lawyers, a large number of the older and stronger lawyers were loyalists and
left 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 the
bar." 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; Young
and 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, at
303-304. "In the period immediately after the Civil War," the legal profession in the
United 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 admission
to 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, of
good moral character, on application to the superior court shall be admitted to practice
as an attorney.").

MAINE LAW REVIEW
riod of study. 7 5
During the nineteenth century, the bar in the United States was
essentially open. A large group of lawyers competed for business insufficient
to accommodate their numbers. 7 During this time, David
Hoffman published fifty "Resolutions in Regard to Professional Deportment,
'7 7 the first American code of legal ethics.7 8 Noting the
lack of professional community, and recognizing there was no realistic
hope of effective external regulation, Hoffman sought to encourage
good behavior among lawyers by relying on individual moral
persuasion, rather than on proscriptive rules. 9 Also during this period,
George Sharswood authored "An Essay on Professional Ethics"
as an inspirational guide to the practicing bar, urging that high
moral principle was the foundation of professional dignity. 0 Sharswood
warned of "a horde of pettifogging, barratrous, money-making
lawyers" and suggested that passivity and patience were a lawyer's
cardinal virtues. 8 ' He was in favor of "let[ting] business seek
the young attorney." 82
D. Guidelines and Rules Prohibiting Solicitation
[Vol. 42:369
In the latter part of the nineteenth century, leaders of the bar
75. H. DRINKER, supra note 38, at 19. In 1860, only nine of thirty-nine states required
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 was
an attorney's certificate that the applicant had 'regularly and attentively studied
law.'" Id. at 229.
76. See generally H. DRINKER, supra note 38, at 20; L. FRIEDMAN, supra Aote 68 at
633-34; Matzko, The Best Men of the Bar: The Founding of the American Bar Association,
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 TIlE
PROFESSION GENERALLY 752-75 (2d ed. 1846). The fifty "Resolutions in Regard to Professional
Deportment" were published in 1836 as part of a general course of study on
professional ethics for attorneys.
78. See generally Kalish, David Hoffman's Essay on Professional Deportment
and the Current Legal Ethics Debate, 61 NEB. L. REV. 54, 58 (1982) ("This code
defined 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 OP
THE 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 attorney,
Sharswood further noted:
[T]hough it (business) may come in slowly, and at intervals, and promise in
its character neither fame nor profit, still, if he bears in mind that it is an
important part of his training that he should understand the business he
does thoroughly, that he should especially cultivate, in transacting it, habits
of neatness, accuracy, punctuality, and despatch, candor toward his client,
and strict honor toward his adversary, it may be safely prophesied that his
business will grow as fast as it is good for him that it should grow ....
Id. at 131-32.

1990] SOLICITATION BY LAWYERS
attempted to stop the rampant commercialism in the as-yet unregulated
legal profession. They began to reestablish standards of character,
education, and training within the profession. 8 3 As a means to
this end, lawyers sought the reorganization of bar associations
throughout the country.8 The Alabama State Bar Association formulated
and adopted the first formal Code of Ethics 5 for the American
legal profession in 1887. As a general rule of guidance to the
Alabama Bar, this Code stated that "[n]ewspaper advertisements,
circulars and business cards, tending professional services to the
general public, are proper; but special solicitation of particular individuals
to become clients ought to be avoided." 8
The Alabama Code, along with Hoffman and Sharswood's works,
served as a principal antecedent to the Canons of Professional Ethics,
8' which the American Bar Association (ABA) promulgated and
adopted in 1908. The Canons, subsequently adopted in whole or in
part throughout the United States, 8 continued to denounce lawyer
solicitation. 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 of
Ethics formulated by the Alabama State Bar Association was based largely on Sharswood's
Professional Ethics and Hoffman's Resolutions. Id. at 23 n.7. See supra notes
77-82. The Alabama Code of Ethics, as adopted, stresses the need for high moral
principles and sets forth the duties of attorneys:
1st. To support the constitution and laws of this State and the United
States.
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 the
judges 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 prejudicial
to the honor or reputation of a party or a witness, unless required by
the justice of the cause with which they are charged.
6th. To encourage neither the commencement nor continuance of an action
or proceeding from any motive of passion or interest.
7th. Never to reject, for any consideration personal to themselves, the cause
of the defenseless and oppressed.
118 Ala. at XXIII-XXIV.
Focusing on the attorney's duties, the Alabama State Bar Association adopted fiftysix
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, some
states have special statutes that govern the conduct of lawyers. As a general practice,
the individual states, with some modification, adopt and implement the ethics rules
proposed by the ABA. See generally NATIONAL REPORTER ON LEGAL EThics AND PRO-
FESSIONAL RESPONSIBILITY (D. Lubin ed. 1989).

MAINE LAW REVIEW [Vol. 42:369
vertising, the Canons condemned it. 9 In a blanket provision, the Canons
asserted that "solicitation of business by circulars or advertisements,
or by personal communications, or interviews, not warranted
by personal relations, is unprofessional." 90 The ABA amended the
Canons numerous times during the next six decades; however, the
proscriptions against advertising and solicitation remained essentially
intact. 9 1
In 1969, the ABA replaced the Canons with the Model Code of
Professional 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 young
lawyer, and especially with his brother lawyers, is the establishment of a
well-merited reputation for professional capacity and fidelity to trust. This
cannot be forced, but must be the outcome of character and conduct. The
publication or circulation of ordinary simple business cards, being a matter
of personal taste or local custom, and sometimes of convenience, is not per
se improper. But solicitation of business by circulars or advertisements, or
by personal communications, or interviews, not warranted by personal relations,
is unprofessional. It is equally unprofessional to procure business by
indirection through touters of any kind, whether allied real estate firms or
trust companies advertising to secure the drawing of deeds or wills or offering
retainers in exchange for executorships or trusteeships to be influenced
by the lawyer. Indirect advertisement for business by furnishing or inspiring
newspaper comments concerning causes in which the lawyer has been
engaged, or concerning the manner of their conduct, the magnitude of the
interests involved, the importance of the lawyer's positions, and all other
like self-laudation, defy the traditions and lower the tone of our high calling,
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, advertisements,
through touters or by personal communications or interviews not
warranted by personal relations. Indirect advertisements for professional
employment such as furnishing or inspiring newspaper comments, or procuring
his photograph to be published in connection with causes in which
the lawyer has been or is engaged or concerning the manner of their conduct,
the magnitude of the interest involved, the importance of the lawyer's
position, and all other like self-laudation, offend the traditions and lower
the tone of our profession and are reprehensible; but the customary use of
simple 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 body
of Canon 27 was language relating to information permissible for inclusion in "law
lists" 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 the
Canons were incomplete and unorganized, and failed to "recognize the distinction
between [] the inspirational and the prescriptive." See Wright, The Code of Professional
Responsibility: Its History and Objectives, 24 ARK. L. REV. 1, 5 (1970). The
Model Code was composed of three parts: 1) Canons - concise statements setting

1990]
SOLICITATION BY LAWYERS
contained disciplinary rules prohibiting advertising and solicitation
that were similar to the proscriptions in the Canons. 3 While the
forth the basic duty of lawyers; 2) Ethical Considerations - statements of activity and
conduct to which practitioners should aspire; 3) Disciplinary Rules - statements setting
forth minimum standards of conduct that must be met or a lawyer may be subject
to disciplinary action. MODEL CODE, supra, Preliminary Statement (1969). The
three parts of the Code are separate but interrelated, serving "both as an inspirational
guide" and "as a basis for disciplinary action" when minimum standards are
not met. Id.
93. MODEL CODE, supra note 92, DR 2-101 to 2-105 (1969). The Disciplinary Rules
of the Model Code provided:
DR 2-101 Publicity in General
(A) A lawyer shall not prepare, cause to be prepared, use, or participate in
the use of, any form of public communication that contains professionally
self-laudatory statements calculated to attract lay clients; as used herein,
"public communication" includes, but is not limited to, communication by
means of television, radio, motion picture, newspaper, magazine, or book.
(B) A lawyer shall not publicize himself, his partner, or associate as a lawyer
through newspaper or magazine advertisements, radio or television announcements,
display advertisements in city or telephone directories, or
other means of commercial publicity, nor shall he authorize or permit
others 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 professional
cards, professional announcement cards, office signs, letterheads, or
similar professional notices or devices, except that the following may be
used if they are in dignified form:
(1) A professional card of a lawyer identifying him by name and
as a lawyer, and giving his addresses, telephone numbers, the
name of his law firm, and any information permitted under DR 2.
105. A professional card of a law firm may also give the names of
members and associates. Such cards may be used for
identification.
(2) A brief professional announcement card stating new or
changed associations or addresses, change of firm name, or similar
matters pertaining to the professional offices of a lawyer or law
firm, which may be mailed to lawyers, clients, former clients, personal
friends, and relatives.
DR 2-103 Recommendation of Professional Employment
(A) A lawyer shall not recommend employment, as a private practitioner, of
himself, his partner, or associate to a non-lawyer who has not sought his
advice regarding employment of a lawyer.
(13)... a lawyer shall not compensate or give anything of value to a person
or organization to recommend or secure his employment by a client, or as a
reward for having made a recommendation resulting in his employment by
a client.
(C) A lawyer shall not request a person or organization to recommend employment,
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 should
obtain counsel or take legal action shall not accept employment resulting
from that advice.

MAINE LAW REVIEW
(Vol. 42:369
Model Code would eventually permit limited advertising, 9 ' any em-
Id.
The Code also incorporated disciplinary rules relating to lawyer identification, referral
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 later
amended to allow advertising, by explicitly designating information a lawyer could
include in a publication regarding his services:
DR 2-101 Publicity
(A) A lawyer shall not, on behalf of himself, his partner, associate or any
other lawyer affiliated with him or his firm, use or participate in the use of
any form of public communication containing a false, fraudulent, misleading,
deceptive, self-laudatory or unfair statement or claim.
(B) In order to facilitate the process of informed selection of a lawyer by
potential consumers of legal services, a lawyer may publish or broadcast,
subject to DR 2-103, the following information in print media distributed or
over television or radio broadcast in the geographic area or areas in which
the lawyer resides or maintains his offices or in which a significant part of
the lawyer's clientele resides, provided that the information disclosed by
the lawyer in such publication or broadcast complies with DR 2-101(A), and
is presented in a dignified manner:
(1) Name, including name of law firm and names of professional
associates; addresses and telephone numbers;
(2) One or more fields of law in which the lawyer or law firm practices,
a statement that practice is limited to one or more fields of
law, or a statement that the lawyer or law firm specializes in a
particular field of law practice, to the extent authorized under DR
2-105;
(3) Date and place of birth;
(4) Date and place of admission to the bar of state and federal
courts;
(5) Schools attended, with dates of graduation, degrees and other
scholastic distinctions;
(6) Public or quasi-public offices;
(7) Military service;
(8) Legal authorships;
(9) Legal teaching positions;
(10) Memberships, offices, and committee assignments, in bar
associations;
(11) Membership and offices in legal fraternities and legal
societies;
(12) Technical and professional licenses;
(13) Memberships in scientific, technical and professional associations
and societies;
(14) Foreign language ability;
(15) Names and addresses of bank references;
(16) With their written consent, names of clients regularly
represented;
(17) Prepaid or group legal services programs in which the lawyer
participates;
(18) Whether credit cards or other credit arrangements are
accepted;
(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

1990]
SOLICITATION BY LAWYERS
ployment that resulted from "in-person unsolicited advice to a
layperson that he should obtain counsel or take legal action" subjected
a lawyer to discipline. 5
In 1983, the ABA adopted the Model Rules of Professional Conduct
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 that
the statement discloses whether percentages are computed before
or after deduction of costs;
(23) Range of fees for services, provided that the statement discloses
that the specific fee within the range which will be charged
will vary depending upon the particular matter to be handled for
each client and the client is entitled without obligation to an estimate
of the fee within the range likely to be charged, in print size
equivalent to the largest print used in setting forth the fee
information;
(24) Hourly rate, provided that the statement discloses that the
total fee charged will depend upon the number of hours which
must be devoted to the particular matter to be handled for each
client and the client is entitled to without obligation an estimate
of the fee likely to be charged, in print size at least equivalent to
the largest print used in setting forth the fee information;
(25) Fixed fees for specific legal services, the description of which
would not be misunderstood or be deceptive, provided that the
statement discloses that the quoted fee will be available only to
clients whose matters fall into the services described and that the
client is entitled without obligation to a specific estimate of the
fee likely to be charged in print size at least equivalent to the
largest 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 contradictory.
See Kutak, Model Rules: Law For Lawyers or Ethics For the Profession, 38
REc. AB. Crry N.Y. 140, 142-43 (1983); Morgan, The Evolving Concept of Professional
Responsibility, 90 HARv. L REv. 702 (1977). See also Moore, Conflicts of Interest
in the Simultaneous Representation of Multiple Clients: A Proposed Solution to
the Current Confusion and Controversy, 61 TEx. L Rav. 211, 212 (1982). During the
1970's, members of the bar began to feel that the tri-partite structure of the Model
Code was confusing and that the Code failed to address certain important issues. See
G. 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 constitutional
provisions. See, e.g., G. HAZARD & W. HODES, supra, at xxxv. This situation
led the ABA to appoint a special commission in 1977 to examine the Model Code, an
action that eventually resulted in the adoption of the Model Rules in 1983. Id. at
xxxv-xxxviii. According to the late Robert J. Kutak, former Chairman of the ABA
Commission on Evaluation of Professional Standards, the Model Rules define the law
of lawyering and seek to guide the conscientious lawyer to balance competing duties
in the professionally responsible representation of clients. See generally Kutak, The
Law of Lawyering, 22 WAsHBuRN LJ. 413 (1983). Criticism and defense over substantive
provisions, as well as scrutiny of the lawyer's role and the adversary system as an
entity, 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 adopted

MAINE LAW REVIEW [Vol. 42:369
larged the sphere of lawyer advertising" 7 but continued the rebuke
against in-person solicitation. 98 The Rules provided that "[a] lawyer
may not solicit professional employment from a prospective client
with whom the lawyer has no family or prior professional relationship,
by mail, in-person or otherwise, when a significant motive for
the lawyer doing so is the lawyer's pecuniary gain. ' ' 9 This proscrip-
the Model Rules either in their entirety or with some modification. See generally
NATIONAL REPORTER ON LEGAL ETHICS AND PROFESSIONAL RESPONSIBILITv (D. Lubin
ed., 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 services
through public media, such as a telephone directory, legal directory, newspaper
or other periodical, outdoor, radio or television, or through written
communication not involving solicitation as defined in Rule 7.3.
(c) A lawyer shall not give anything of value to a person for recommending
the lawyer's services, except that a lawyer may pay the reasonable cost of
advertising or written communications permitted by this rule ....
Rule 7.1 provided:
Rule 7.1 Communications Concerning a Lawyer's Services
A lawyer shall not make a false or misleading communication about the
lawyer or the lawyer's services. 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.
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 Clients
A lawyer may not solicit professional employment from a prospective
client with whom the lawyer has no family or prior professional
relationship, by mail, in-person or otherwise, when a significant
motive for the lawyer's doing so is the lawyer's pecuniary
gain. The term "solicit" includes contact in person, by telephone
or telegraph, by letter or other writing, or by other communication
directed to a specific recipient, but does not include letters
addressed or advertising circulars distributed generally to persons
not known to need legal services of the kind provided by the lawyer
in a particular matter, but who are so situated that they
might in general find such services useful.
Id.
99. Id. In defining the term "solicit," the Rules specifically exclude "persons not
known to need legal services of the kind provided by the lawyer in a particular matter,
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 mailings
by lawyers from the definition of "solicitation," but continued to condemn targeted

1990] SOLICITATION BY LAWYERS
tion against solicitation was later softened, however, by a 1989
amendment which, while still forbidding a lawyer from engaging in
in-person or live telephone solicitation, permitted written or recorded
solicitation, provided the contents were neither deceptive nor
involved coercion, duress or harassment. 100
mailings as prohibited conduct.
100. Id. The ABA redrafted Model Rule 7.3 following the United States Supreme
Court's decision in Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988). See infra
notes 200-214 and accompanying text. The Rule now adopts a resolution that had
been 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 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.
(b) A lawyer shall not solicit professional employment from a
prospective client by written or recorded communication or by inperson
or telephone contact even when not otherwise prohibited
by paragraph (a), if-
(1) the prospective client has made known to the lawyer
a desire not to be solicited by the lawyer, or
(2) the solicitation involves coercion, duress or
harassment.
(c) 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 envelope and at the beginning and ending of any recorded
communication.
(d) Notwithstanding the prohibitions in paragraph (a), a lawyer
may participate with a prepaid or group legal service plan operated
by an organization not owned or directed by the lawyer
which uses in-person or telephone contact to solicit memberships
or subscriptions for the plan from persons who are not known to
need 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 to
reflect 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 advertise
services through public media, such as a telephone directory, legal directory,
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 shall
be kept for two years after its last dissemination along with a record of
when and where it was used.
(c) A lawyer shall not give anything of value to a person for recommending
the lawyer's services, except that a lawyer may pay the reasonable cost of
advertisements or communications permitted by this rule and may pay the
usual charges of a not-for-profit lawyer referral service or other legal service

MAINE LAW REVIEW
[Vol. 42:369
While the current rules that prescribe behavior for members of
the legal profession continue to prohibit the direct solicitation of
business by lawyers, 101 one may question whether an absolute ban
on in-person and live telephone solicitation is an impermissible restriction
violative of the first amendment. 102 As this Article will
demonstrate, the United States Supreme Court has significantly
eroded the traditional ban on lawyer solicitation, as well as its rationale.
However, the question remains whether the Court has
drawn an arbitrary line between that solicitous conduct it considers
proper and that it considers improper. In focusing on the current
proscriptions against solicitation, it is instructive to review how the
Supreme Court confronted these issues and how the logical extension
of its cases undermines the continuing bans on in-person
solicitation.
III. THE CONSTITUTIONAL CONTEXT
In order to examine properly how courts have influenced the bans
on lawyer solicitation, solicitation must be viewed in conjunction
with lawyer advertising cases. Advertising is a group communication
that informs the public that a lawyer is available to perform ser-
vices. 103 Solicitation, conversely, is a personal appeal directed toward
0 4
a prospective client.1
A. Commercial Speech Unprotected Under First Amendment
During the first part of the twentieth century, the Canons implemented
by the self-regulated legal profession,1 05 which denounced
both solicitation and advertising by lawyers, 0 6 remained intact and
virtually unchallenged. Since lawyer advertising and solicitation
constituted a form of commercial speech,' 0 7 they were thought to fall
organization.
(d) Any communication made pursuant to this rule shall include the name
of 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 Under
Commercial 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, at
32.
106. See supra notes 87-91 and accompanying text.
107. Commercial speech is "speech of any form that advertises a product or service
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 Amendment
Protection of Commercial Speech - Bolger v. Youngs Drug Products Corp., 32 KAN.
L. REV. 679, 685 (1984) (question of "what is commercial speech?" never definitively
answered by United States Supreme Court; it is defined differently in each decision);

1990]
SOLICITATION BY LAWYERS
outside 0 the protection given 8
by the first amendment.
Prior to the mid-1970s, the United States Supreme Court excluded
commercial speech from the purview of constitutional protection.
1 9 The Court intimated that the commercial motivation of the
advertiser, rather than the content of the speech, rendered commercial
speech undeserving of protection under the first amendment.'
The Court acknowledged that states and municipalities "may not
unduly burden or proscribe" the freedom of "communicating information
and disseminating opinion," but stated that "the Constitution
imposes no such restraint on government as respects purely
commercial advertising."" '
Despite this wholesale exclusion of commercial speech from first
amendment protection, the Court continued to address cases dealing
with potential, limited constitutional protection of some forms of
commercial speech. However, in these later cases, the content of the
Note, First Amendment Protection for Commercial Advertising: The New Constitutional
Doctrine, 44 U. CH. L REv. 205, 234 (1976) (commercial speech definition
should be narrow to "assure that the reduction in first amendment protection afforded
commercial advertising does not endanger important interests.").
108. See infra notes 109-16 and accompanying text for discussion of the development
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 protection
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 of
commercial or business advertising. The law was challenged by an individual who
owned a submarine that he displayed to the public for an admission charge.
Chrestensen distributed handbills advertising his submarine, including a message
thereon protesting New York City's refusal to allow him to moor his ship at a city
wharfage facility. Id. at 52-53. The Court rejected Chrestensen's claim that the regulation
impinged on his right to comment on a matter of public interest, declaring his
action was a subterfuge to circumvent the ordinance. Id. at 55. The Court stated that
the ordinance was lawfully invoked because Chrestensen was attempting "to use the
streets 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 prohibition
on commercial door-to-door sales of magazine subscriptions, without consent
of homeowner).
111. Valentine v. Chrestensen, 316 U.S. at 54. Cf. Stoltenberg & Whitman, Direct
Mail Advertising by Lawyers, 45 U. Prrr. L REv. 381, 385 (1984) (Chrestensen did
not entirely eliminate protection for commercial speech; no authority exists for legislative
curbing of even "purely commercial advertising" in absence of competing public
interest). In a series of cases decided in 1943, the Supreme Court held ordinances
similar 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 for
distribution of purely commercial leaflets but may not prohibit distribution of handbills
in pursuit of clearly religious activity); Murdock v. Pennsylvania, 319 US. 105,
111 (1943) (invalidated ordinance prohibiting unlicensed solicitation of business; selling,
rather than donating, religious literature does not transform evangelism into
commercial enterprise); Martin v. City of Struthers, 319 U.S. 141, 149 (1943) (invalidated
ordinance forbidding door-to-door distribution of handbills because ordinance
impermissibly restricted speech that was not commercial advertising).

MAINE LAW REVIEW
[Vol. 42:369
speech, rather than the motivation behind the speech, began to assume
a greater role in the analysis. In determining whether speech
was commercial, the Court distinguished purely commercial advertisements
that merely proposed a business transaction from advertisements
that expressed an editorial position on matters of social or
political concern."' Therefore, the mere fact that speech appeared
as a paid advertisement did not necessarily render it commercial or
constitutionally unprotected. 113 This content-based analysis required
a case-by-case balancing; a state may not deny speech first
amendment protection simply by denoting it as commercial."' The
value of commercial speech to the marketplace required weighing
the first amendment interest at stake against the governmental interest
purportedly advanced by the regulation." 5 In making this assertion
the Court maintained that an advertisement, "like all public
expression, may be subject to reasonable regulation that serves a legitimate
public interest."" '
B. Virginia Pharmacy: First Amendment Protection for
Commercial Speech
Virginia State Board of Pharmacy v. Virginia Citizens Consumer
Council, Inc.," 7 decided in 1976, was the first of several United
States Supreme Court decisions to declare that commercial speech is
entitled to partial first amendment protection because of its infor-
112. Compare New York Times Co. v. Sullivan, 376 U.S. 254, 266 (1964) (advertisement
of civil rights organization that communicated information vital to public
interest 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 advertisement,"
help wanted ads divided into sex-designated columns are unprotected commercial
speech, even though supervised under the direction of the media).
113. See Bigelow v. Virginia, 421 U.S. 809, 818 (1975) (statute making it misdemeanor
to encourage procurement of abortions by advertisement infringes protected
first amendment speech).
114. Id. at 826. The Court noted that the advertisement at issue did more than
propose a commercial transaction; the speech communicated information of widespread
public and constitutional interest. Id. at 822.
115. Id. at 826. In writing for the Bigelow majority, Justice Blackman noted that
the Chrestensen case did not constitute "authority for the proposition that all statutes
regulating commercial advertising are immune from constitutional challenge."
Id. at 820. Previously, a number of justices had expressed doubts about the viability
of 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 on
Human Relations, 413 U.S. at 401 (Stewart, J., dissenting). Justice Douglas criticized
the 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).

1990]
SOLICITATION BY LAWYERS
mational value to individual consumers and the general public.'"
Addressing the issues of commercial speech and the regulation of
professionals, the Court invalidated a Virginia statute that forbade
licensed pharmacists from advertising the prices of prescription
drugs. " 9 The Court noted that pharmacists had a valid economic
interest in the unrestricted advertising of prescription drugs"' and
that consumers had a strong interest in the uninhibited flow of commercial
information. 2 ' Weighed against these interests was the
state's interest in maintaining "a high degree of professionalism"
among pharmacists, which ultimately resulted in the protection of
consumer health.1 22 The Court observed that an advertising ban did
not ensure professionalism. 23 The actual effect of the ban was to
keep the state's consuming public ignorant of certain costs.1 2 '
Therefore, the consuming public's first amendment interest in the
free flow of truthful information about a lawful commercial activity
outweighed the state's asserted interest in maintaining professionalism
among licensed pharmacists. 25 The Court held that a state may
118. Id. at 754-65. Since granting commercial speech first amendment protection,
the Court has struggled to define its constitutional status. See generally Lively, The
Supreme 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 will
sell you the X prescription drug at the Y price," which lacked any editorial position
on a social or political issue, lay -utside the protection of the first amendment. Id. at
761. With respect to this commrcial information, the Court noted that the particular
consumer's interest in such commercial information "may be as keen, if not keener by
far, 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," this
fact "hardly disqualifies him from protection under the First Amendment"). Cf.
supra note 109.
121. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425
U.S. at 763-64 ("Those whom the suppression of prescription drug price information
hits the hardest are the poor, the sick, and particularly the aged."). As well as a
benefit to individual consumers, the Court pointed to the fact that "society also may
have a strong interest in the free flow of commercial information." Id. at 764 (citing
Bigelow v. Virginia, 421 U.S. 809 (1975)).
122. Id. at 766-67. The Court did acknowledge the state's interest by noting the
need to monitor the "clinical skill involved in the compounding of drugs," the pharmacist's
role as physician's adjunct, and the general need to uphold "the professional
image of the pharmacist." Id. at 766-68. The state had argued that if it were to allow
such price advertising, customers "will choose the low-cost, low-quality service and
drive the 'professional' pharmacist out of business." Id. at 769. The state further
claimed that advertising might not cause prices to fall, yet might still result in the
loss of stable pharmacist-customer relationships and damage to the professional image
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 justifications
Virginia has offered for suppressing the flow of prescription drug price information,
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-

MAINE LAW REVIEW
[Vol. 42:369
not place a wholesale ban on the "dissemination of concededly
truthful information about entirely lawful activity, fearful of that
information's effect upon its disseminators and its recipients. ' " 120
While protected by the first amendment from complete prohibition,
commercial speech may nevertheless be subject to certain
forms of regulation. 127 In dicta, the Court gave examples of three
forms of permissible commercial speech regulation: 1) reasonable
regulation of time, place, and manner of speech; 2) prohibition of
advertising that is false or misleading; and 3) prohibition of advertisements
which propose transactions that are themselves illegal. 128
C. Bates: Lawyer Advertising Protected as Commercial Speech
One year after granting commercial advertising first amendment
protection in Virginia Pharmacy, the Supreme Court extended similar
protection to an attorney's advertisement in Bates v. State Bar
of Arizona. 129 Two attorneys, in hopes of generating business for
their legal clinic, placed an advertisement in a newspaper listing
their fees for certain routine legal services. 1 30 While admittedly violating
an Arizona state disciplinary rule prohibiting lawyer advertising,
31 the attorneys argued that they had been impermissibly disciplined
because the applicable rule amounted to an unconstitutional
restriction on commercial speech.1 3 2 As in Virginia Pharmacy, the
mation is not in itself harmful, that people will perceive their own best interests if
only they are well enough informed, and that thp beet means to that end is to open
channels of communication rather than close them").
126. Id. at 773.
127. Id. at 770. The Court asserted that the state is "free to require whatever
professional standards it wishes of its pharmacists . . . .But it may not do so by
keeping the public in ignorance of the entirely lawful terms that competing pharmacists
are offering." Id.
128. Id. at 771-72. These types of regulation are sometimes available with noncommercial
speech as well. Time, place, and manner restrictions are permissible if
they are not based on the content of the message, satisfy a significant governmental
interest, and permit other alternative forms of speech. Restrictions on false or misleading
speech are similarly not confined to the commercial context. Id. at 771.
129. 433 U.S. 350 (1977). Following the decision in Virginia Pharmacy, some
doubt remained as to whether the Court would extend the rationale of their ruling to
attorney advertising. The Virginia Pharmacy Court carefully limited its decision to
the facts of the case and specifically noted that its holding regarding advertising of
products sold by pharmacists might not apply equally to the regulation of advertisements
of legal services by attorneys. 425 U.S. at 773 n.25. Rather than dealing in
standardized products, attorneys and doctors render a variety of services, resulting in
the "enhanced possibility for confusion and deception" should advertising be undertaken.
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 rule
in Arizona in 1976 was substantially similar to the disciplinary rule promulgated in
the 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

1990] SOLICITATION BY LAWYERS
Bates Court applied a balancing test to determine the constitutionality
of the rule. 1 3 The Court weighed the public's need for and
right to accurate information concerning the cost and availability of
legal services, against the state's arguments for the maintenance of
legal professionalism. 12" The Court determined that public access to
the legal system outweighed the state's interest. 5 5 Therefore, the
asserted that the rule to which their conduct was subject violated Sections 1 and 2 of
the Sherman Act because of its tendency to limit competition. Id. The Court, imposing
the state-action exemption of the Sherman Act, found that claim barred. Id. at
363. It follows, however, that since lawyers' ethical rules concerning advertising and
solicitation constitute state-action, they are subject to the constitutional constraints
of the commercial speech doctrine. See Maute, supra note 103, at 490; Note, Sherman
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 that
balancing tests are "skewed toward suppression" when courts employ them in commercial
speech restriction matters. Note, Constitutional Protection of Commercial
Speech, 82 COLUM L IRv. 720, 746 (1982). Commercial speech promotes only the socalled
"listener" and "process" interests underlying the first amendment. The "listener
interest" refers to benefits derived by the recipient of the information. Id. at
733-35. The "process interest" refers to the value in maintaining "the structure that
permits 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 general
social need to regulate speech; rather, what is weighed is "the interest of the
public in hearing the speech against the interest of that very same public in not hearing
it." Id. at 746.
134. Bates v. State Bar of Arizona, 433 U.S. at 368-79. In support of the rule
prohibiting lawyer advertising, the state presented a six-point analysis urging the validity
of the regulation. The state argued: (1) advertising would undermine the attorney's
sense of dignity and self-worth, thereby degrading the legal profession; (2) because
attorneys' services are so highly individualized, price advertisement would
inherently mislead the consumer by ignoring the particular attorney's skills and by
failing to tailor the information to a particular client's needs; (3) advertising would
stir up litigious tendencies among the public; (4) high advertising costs would be
passed on to consumers through increased fees and discourage young attorneys from
setting up practice; (5) advertising would discourage quality service because attorneys
would likely provide standard services to clients, regardless of actual need; and (6) a
general restriction against advertising lends itself to tighter enforcement than a less
restrictive alternative. Id.
135. In rejecting the arguments advanced by the state, the Court found "the postulated
connection between advertising and the erosion of true professionalism to be
severely strained." Id. at 368. The Court noted that early lawyers viewed the law as a
public service; the ban on advertising originated merely as a rule of etiquette that
only later evolved into a professional ethic. Id. at 371. See supra notes 63-66 and
accompanying text. In this regard, the Court observed that "habit and tradition are
not in themselves an adequate answer to a constitutional challenge." Bates v. State
Bar of Arizona, 433 U.S. at 371. In fact, the advertising ban might be viewed by the
public as a failure by the profession to meet community needs. Id. at 370. In discussing
the public's need for information regarding the availability and terms of legal
services, the Court noted the following. (1) the public has a right to make an informed,
intelligent choice concerning legal counsel; (2) lack of advertising encourages
the public to avoid the legal profession out of a fear of exorbitant fees or an inability
to locate a competent attorney, and (3) advertising may help to reduce prices, making

MAINE LAW REVIEW
[Vol. 42:369
first amendment prohibited a "blanket suppression" of attorney advertising.
13 The holding, however, was carefully tailored to the facts
of the case 3 7 and echoed permissible forms of speech regulation previously
set out in Virginia Pharmacy. 38 Specifically reserved was
the question of the permissible scope of regulation of in-person solicitation
of clients by attorneys.' 39
D. Primus and Ohralik: Permissible Bans on Non-Political
In-Person Solicitation
Not long after Bates, the Supreme Court took the opportunity to
address the matter of in-person solicitation of clients by attorneys in
the companion cases of In re Primus'" and Ohralik v. Ohio State
Bar Association.' 4 ' Both cases stemmed from disciplinary actions
legal services fully available, particularly for "the not-quite-poor and the unknowledgeable."
Id. at 370, 376-77.
136. Id. at 379, 383. The Court relied heavily on their reasoning in Virginia Pharmacy.
See supra notes 117-28 and accompanying text. After summarizing Virginia
Pharmacy, the Court noted that it had relied on the former "because the conclusion
that Arizona's disciplinary rule is violative of the First Amendment might be said to
flow a fortiori from it." Id. at 365. Justice Rehnquist dissented from the portion of
the Bates opinion that held the Arizona rule prohibiting lawyer advertising to be an
infringement 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 advertisements
of services undermines the amendment, which is "a sanctuary for expressions
of public importance or intellectual interest." Id.
137. The only constitutional issue addressed was whether a state can prevent an
attorney from publishing a "truthful advertisement concerning the availability and
terms of routine legal services." Id. at 384.
138. Id. at 383. See supra note 128 and accompanying text. After Bates, "the focus
of debate over lawyer advertising shifted from whether advertising should be permitted
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 approved
two proposed disciplinary rules governing the regulation of advertising. ABA
BOARD OF GOVERNORS REPORT 177B (1977). One proposed rule construed Bates liberally,
forbidding only "false, fraudulent, misleading or deceptive" advertising. The second
model reflected a narrow reading of Bates, listing numerous restrictions on the
time, 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. MODEL
CODE, 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 for
consideration. See Welch, Bates, Ohralik, Primus-The First Amendment Challenge
to State Regulation of Lawyer Advertising and Solicitation, 30 BAYLOR L. REV. 585,
603 (1978). While the ABA acted expeditiously in revamping its model disciplinary
rule on advertising, the individual jurisdictions' reaction to Bates was hesitant and a
number of states were slow to formulate new advertising standards. Hazard, Pearce &
Stempel, Why Lawyers Should be Allowed to Advertise: A Market Analysis of Legal
Services, 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 and
Primus on the same day.

1990] SOLICITATION BY LAWYERS
against attorneys for soliciting clients. However, each involved
markedly different factual settings that are illustrative of the oppo-
14 2
site ends of the solicitation spectrum.
In Primus, a cooperating attorney for the American Civil Liberties
Union (ACLU) addressed a group of women who had been sterilized
as a condition of continued receipt of government benefits under the
Medicaid Program. 1 4 3 The lawyer advised the women of their legal
rights and suggested that a lawsuit was possible. 1 4 ' Following the
meeting, the lawyer sent a letter to one of these women, advising her
that the ACLU would provide her with free legal representation
should she want to institute a suit against the doctor who had performed
her sterilization surgery. 1 4 5 Subsequently, the lawyer was
disciplined for soliciting a client on behalf of the ACLU,"' and for
1 7
soliciting a client after having provided unsolicited legal advice.
142. Note, Constitutional Law - Attorney Advertising - Targeted Mailings - A
Blanket Prohibition of Direct Mail Solicitations to Targeted Accident Victims Violates
an Attorney's Right of Expression Under the First and Fourteenth Amendments
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 infra
notes 143-47, 154-56 and accompanying text. See also Pulaski, In-Person Solicitation
and 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 Supreme
Court of South Carolina charged and found Attorney Edna Primus to have violated
DR 2-103(D)(5)(a) and (c) of the disciplinary rules of the Supreme Court of South
Carolina that provided:
DR 2-103(D)
A lawyer shall not knowingly assist a person or organization that recommends,
furnishes, or pays for legal services to promote the use of his services
or those of his partners or associates. However, he may cooperate in a
dignified manner with the legal service activities of any of the following,
provided that his independent professional judgment is exercised in behalf
of his client without interference or control by any organization or other
person:
(5) Any other non-profit organization that recommends, furnishes, or pays
for legal services to its members or beneficiaries, but only in those instances
and to the extent that controlling constitutional interpretation at the time
of the rendition of the services requires the allowance of such legal service
activities, and only if the following conditions, unless prohibited by such
interpretation, are met-
(a) The primary purposes of such organization do not include
the rendition of legal senices.
(c) Such organization does not derive a financial benefit from
the 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 that

MAINE LAW REVIEW
[Vol. 42:369
Upon review of the lawyer's conduct, the United States Supreme
Court struck down the application of the designated disciplinary
rules." 8 The Court granted full first amendment protection to the
lawyer's speech. Her actions were motivated not by her pecuniary
interests, but constituted an expression of her political beliefs and
the ACLU's legitimate objectives."" Relying primarily on the 1963
case of NAACP v. Button,' 5 " the Court viewed this as political
rather than commercial speech.' 5 ' While the state generally had the
power to regulate the legal profession,' 52 the questioned solicitation
deserved the broad, comprehensive protection granted to political
expression and association by the first amendment, rather than the
more limited protection afforded commercial speech.1 5 '
In contrast with Primus, the attorney disciplined in Ohralik solicited
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 obtain
counsel or take legal action shall not accept employment resulting from
that advice, except that:
(5) If success in asserting rights or defenses of his client in litigation in the
nature of a class action is dependent upon the joinder of others, a lawyer
may accept, but shall not seek, employment from those contacted for the
purpose of obtaining their joinder.
Id. at 418-21, 420 n.11.
148. The Court held that the application of the South Carolina disciplinary rules
violated 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 activities
by the attorneys of the National Association for the Advancement of Colored People
(NAACP), in which they arranged community meetings to discuss school desegregation
and offered to represent attendees in legal proceedings to achieve desegregation
as "modes of expression and association protected by the First and Fourteenth
Amendments." Id. at 420-21, 428-29. The Court held that solicitation of prospective
desegregation litigants was included within the right to associate for the advancement
of political goals and ideas, and thus could not be prohibited by the state "under its
power 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 state
power. The state claimed that the disciplinary action against Primus was "part of a
regulatory program aimed at the prevention of undue influence, overreaching, misrepresentation,
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 to
guard against such matters, the Court reiterated that" 'broad rules framed to protect
the public and to preserve respect for the administration of justice' must not work a
significant impairment of 'the value of associational freedoms.' ". In re Primus, 436
U.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.

1990]
SOLICITATION BY LAWYERS
face basis, offering his services for a contingency fee.'" The attorney's
contact with the victims occurred shortly after their accidents.
He visited one victim who was in traction in the hospital and another
who had only been released from the hospital the day
before. 155 The attorney defended his actions by saying that in-person
solicitation constituted commercial speech and was therefore
protected by the first amendment.""( In rejecting this argument, the
Court distinguished the public advertisement in Bates from in-person
solicitation, pointing out that the latter "may exert pressure [on
an accident victim] and often demands an immediate response"; this
leaves the victim little "opportunity for comparison or reflection."
The lawyer's conduct in Ohralik was primarily to advance his own
pecuniary interests, rather than to vindicate the legal rights of
154. 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 potential
for overreaching that is inherent in a lawyer's in-person solicitation of professional
employment." Id. at 468. The Court's condemnation of Ohralik's conduct in its synthesis
of the case illustrates the extreme nature of his acts:
He approached two young accident victims at a time when they were especially
incapable of making informed judgments or of assessing and protecting
their own interests. He solicited Carol McClintock in a hospital room
where she lay in traction and sought out Wanda Lou Holbert on the day
she came home from the hospital, knowing from his prior inquiries that she
had just been released. Appellant urged his services upon the young women
and used the information he had obtained from the McClintocks, and the
fact of his agreement with Carol, to induce Wanda to say "O.K." in response
to his solicitation. He employed a concealed tape recorder, seemingly
to ensure that he would have evidence of Wanda's oral assent to the
representation. He emphasized that his fee would come out of the recovery,
thereby tempting the young women with what sounded like a cost-free and
therefore irresistible offer. He refused to withdraw when Mrs. Holbert requested
him to do so only a day after the initial meeting between appellant
and Wanda Lou and continued to represent himself to the insurance company
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 decision-making.
Id. at 458. In rejecting this justification, the Court noted the applicable
disciplinary rules neither prohibit a lawyer from communicating such information to
individuals nor from recommending that they obtain counsel Id. What is prohibited
is "using information as bait" to obtain a client for a fee and accepting employment
as 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 ABA
in 1969. See supra note 93.
157. Obralik v. Ohio State Bar Ass'n, 436 U.S. at 457. The Court noted that, on
the 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 inperson
solicitation may be to provide a one-sided presentation and to encourage
speedy and perhaps uninformed decisionmaking [sic]; there is no opportunity for intervention
or counter-education by agencies of the Bar, supervisory authorities, or
persons close to the solicited individuaL" Id.
15 7

MAINE LAW REVIEW
[Vol. 42:369
others, 0 8
or exercise political expression or associational freedom.
As such, the in-person solicitation of remunerative employment was
entitled only to marginal first amendment protection and "subject
to regulation in furtherance of important state interests." 1' Given
the state's compelling interest in preventing the potential overreaching
inherent in solicitation, the rule restricting a lawyer's in-person
solicitation of employment was rationally justified.'
Following Primus and Ohralik, it was generally believed that the
Supreme Court had signaled a significant retreat from the first
amendment protection previously conferred on commercial speech
in Virginia Pharmacy.'' However, Primus and Ohralik presumably
contributed little to the extant doctrine of commercial speech.
Primus was not analyzed as a commercial speech case and Ohralik
involved extremely unprofessional activity.'16 Despite this ambivalence,
the legal profession continued to receive the message that lawyers
were permitted to advertise but that commercial, non-political
solicitation was prohibited.
E. Central Hudson: A Balancing Test for Commercial Speech
Regulations
In 1980, the Supreme Court rendered a decision that helped clarify
the degree of constitutional protection to which commercial
speech was entitled. In Central Hudson Gas & Electric v. Public
158. Id. at 458.
159. Id. at 459. In his concurrence, Justice Marshall noted that Ohralik's primary
offense was not his solicitation of business, but the manner in which he accomplished
the 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 overreaching
or actual harm to the solicited individuals would justify a total prohibition
by 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, inperson
solicitation takes place outside the public view, making it difficult for the state
to prove actual harm. Id. at 466. See infra note 197. It has been noted that the Court
abandons the analytical framework developed in commercial speech cases when it
considers nonadvertising forms of promotion by professionals. Specifically, it does not
discuss benefits and applies a less rigorous test to measure the importance of costs.
McChesney, Commercial Speech in the Professions: The Supreme Court's Unanswered
Questions and Questionable Answers, 134 U. PA. L. Rv. 45, 57 (1985).
161. See Note, Trends in First Amendment Protection of Commercial Speech, 41
VAND. L. REV. 173, 186 (1988).
162. See Note, supra note 142, at 679-80. It is interesting to note that in upholding
the rule prohibiting solicitation in Ohralik, the Court did not apply, or even allude
to, the traditional standards for time, place and manner regulation articulated in
earlier commercial speech cases. See supra notes 128 & 138 and accompanying text.
Arguably the Court created a new category of speech for in-person solicitation, subjecting
it to a lower level of scrutiny than that previously implemented in commercial
speech cases. Andrews, supra note 151, at 978.

1990]
SOLICITATION BY LAWYERS
Service Commission, 6 3 a utility company challenged an order of the
New York Public Service Commission that banned any promotional
advertising that might tend to stimulate the use of electricity.'" Undertaking
a fact-specific evaluation of the Commission's prohibitive
order, the Court formulated a four-part test to be employed in cases
involving commercial speech restrictions. First, the speech at issue
must not concern an unlawful activity nor be misleading.105 Second,
the restriction on commercial speech must serve a "substantial" governmental
interest. 166 Third, the regulation must directly advance
the asserted governmental interest. 167 Fourth, the regulation must
be "no more extensive than is necessary to serve that interest."' 6
The Commission had argued that the state had a stake in energy
conservation and the preservation of fair utility rates that justified
the advertising ban. 69 However, the Court held that the Commission's
prohibition violated the first amendment because it failed to
show that a more limited speech regulation would not protect the
state's interest.'
163. 447 U.S. 557 (1980).
164. Id. at 558-60. The Commission originally promulgated the order during the
energy shortage of the early 1970s. The state became concerned that it would not
have sufficient fuel reserves to meet consumer demands for the 1973-74 winter. Id. at
559.
165. Id. at 566. The government may totally suppress misleading or deceptive advertising
and commercial speech related to illegal activity. Id. at 563.64 (citing
Ohralik 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 speech
that is not misleading, deceptive, or related to unlawful activity is constitutionally
protected and thereby subject to a "more circumscribed" governmental power. Id. at
564. There was no claim that the utility company's ads were misleading, deceptive or
related to unlawful activity. Id. at 566.
166. Id. at 566. The state argued that it needed to suppress any advertising that
could increase public demand for electricity, especially in a time of dependence on
foreign energy sources. The state also argued that the utility's own proposed equalization
of rate structures was likely to be undermined by promotional advertising. The
Court found that the Commission's interests in energy conservation and fair, efficient
utility rates were substantial Id. at 568-69.
167. Id. at 566. The Court found that the state's argument concerning the effect
of advertising on utility rates was "at most, tenuous" and "highly speculative" but
that 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 as
the "least restrictive" means analysis, whereby a state had to show a commercial
speech restriction was the least restrictive means available to further its interests in
order for the restriction to withstand first amendment scrutiny. In 1989, the Supreme
Court stated that some standard short of a least restrictive means is required for a
commercial 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 accompanying
text.
169. See supra note 166.
170. Central Hudson Gas & Elec. v. Public Serv. Comm'n, 447 U.S. at 571. Nevertheless,
the rule failed under the "least restrictive means" test because all advertising
was restricted without any showing that a more limited restriction would not ade-

MAINE LAW REVIEW [ [Vol. 42:369
F. In re R.M.J.: Protection for General Mailings
The case of In re R.M.J.' 7 ' gave the Supreme Court an opportunity
to implement the four-part Central Hudson test in a situation
that involved published attorney advertising and the use of direct
mailings. 172 A lawyer had included information in advertisements
other than that explicitly permitted by a Missouri state disciplinary
rule. 17 3 Additionally, the lawyer had mailed a letter announcing the
opening of his new office to individuals with whom he had no personal
or professional ties, a practice also prohibited under a state
disciplinary rule. 17 4 The rules specifically limited lawyer advertising
to ten delineated categories of information and prohibited mailings
to other than "lawyers, clients, former clients, personal friends and
relatives.' ' 7 5 However, the Court was unable to find the questioned
speech misleading, "inherently misleading, or that restrictions short
of an absolute prohibition would not have sufficed to cure any possible
deception.' 7 The state's strict regulation of language used in
quately further the interest in energy conservation. For example, the ban might conceivably
prevent the utility from advertising "products and services that use energy
efficiently." Id. at 570, 569-71. Justice Blackman's concurrence denounced the fourpart
test implemented by the majority as inconsistent with prior cases and as lacking
adequate first amendment protection for truthful, nondeceptive commercial speech.
Id. at 573 (Blackman, J., concurring). Justice Blackman questioned whether the state
could 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 simply
because 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 impermissible
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 violating
Missouri's version of DR 2-101(B) that allowed lawyers to "publish . . . in newspapers,
periodicals and the yellow pages of telephone directories" the following: name;
address and telephone number; areas of practice; date and place of birth; schools
attended; foreign language ability; office hours; fee for an initial consultation; availability
of a schedule of fees; credit arrangements; and the fixed fee to be charged for
ten 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 an
attorney could list areas of practice in his advertisement. Id. at 194-95, 195 n.6 (quoting
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 DR
2-102(A)(2) which permitted a lawyer to mail a "brief professional announcement
card stating new or changed associates or addresses, change of firm name, or similar
matters." 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)). The
rule that restricts the sending of announcement cards to delineated classifications of
individuals has been referred to as the "'country club' exception to the nonsolicitation
rule," in that it enables established lawyers to broadly interpret the phrase "personal
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 advertisements
included information regarding the jurisdictions in which the attorney was licensed to

1990] SOLICITATION BY LAWYERS
advertising and its absolute prohibition against mailing announcement
cards to persons outside of specifically delineated classifications
thereby violated the first amendment. 1 "
The Court commented generally on the state's authority to regulate
advertising. The Court noted that: "(m)isleading advertising
may be prohibited entirely" 178 and "(e)ven when a communication is
not misleading, the State retains some authority to regulate" such
speech. 179 Accordingly, lawyer advertising was firmly entrenched; efforts
to deprive the public of pertinent information would be carefully
scrutinized. Interestingly, the Court regarded both the published
advertisement and the direct mailing as commercial speech,
synonymous with the term "advertising."' 80 While the Court noted
that, with respect to mailings, supervisory problems existed that
were not present in newspaper advertising cases,1 s 1 general mailings
were neither labeled nor proscribed as "solicitation." Although the
Court acknowledged an attorney's right to advertise through general
mailings, the question of "targeted" mailings, directed toward a
closely defined set of potential clients, was not addressed, either in
terms of its propriety or its inclusion within the commercial speech
category.
G. Zauderer: State Compelled Disclosure in Attorney Ads
In 1985, the Supreme Court again addressed the regulation of
practice, used capital letters to note that he was "Admitted to Practice Before THE
UNITED STATES SUPREME COURT", listed areas of practice beyond those permitted
by the rule's addendum, and did not make a disclaimer of certification of
expertise after listing the areas of practice. Id. at 197. There is no indication that any
impropriety surrounded the substance of the announcement cards that were mailed
by the attorney. Id. at 205-206. To the state's argument that an attorney's letter to an
ordinary consumer may invade his privacy or otherwise frighten him, the Court answered
that the attorney be required to mark the envelope "This is an Advertisement."
Id. at 206 n.20. Cf. also infra note 181.
177. Id. at 207. It has been asserted that in accepting the premise that attorney
advertising has a greater potential for deception than other forms of commercial
speech, the Court created a different and less exacting standard of review for regulations
that limit attorney advertising than it had provided for other forms of commercial
speech regulation in Central Hudson. Note, In re R.M.J.: Reassessing the Extension
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 to
supervise was the reason why mailings of lawyer announcements were restricted. Id.
The Court suggested, however, the possibility of requiring that copies of general mailings
be filed with the Advisory Committee to the Supreme Court of Missouri, the
state body that prosecutes disciplinary proceedings. Id. (citing proposed MODEL
RuLEs, supra note 97, Rule 7.2(b), that requires that a copy of any advertisement be
retained for one year).

MAINE LAW REVIEW [Vol. 42:369
commercial speech by attorneys in Zauderer v. Office of Disciplinary
Counsel. 182 An attorney ran two newspaper advertisements.
The first informed readers that he would represent individuals
charged with drunk driving and would refund his legal fee if the
client were convicted on a drunk driving charge. 18 The second displayed
a drawing of an intrauterine device, accompanied by the
heading "DID YOU USE THIS IUD?," and informed readers that
his firm was willing to represent women injured by their use of the
Dalkon Shield Intrauterine Device. 184 Zauderer was charged with violating
numerous disciplinary rules as a result of the advertisements,"
8 5 rules that limited the realm of permissible information
that attorneys could disseminate and that required that other information
be disclosed. The attorney claimed that such content-based
rules failed to withstand first amendment scrutiny because the state
had provided "no justification" for them. 8 6 The Court focused on
182. 471 U.S. 626 (1985).
183. Id. at 629-30. Two days later, an attorney with the Office of Disciplinary
Counsel of the Supreme Court of Ohio warned Zauderer that he might be subject to
disciplinary action. Ohio Disciplinary Rule DR 2-106(C) prohibited an attorney from
representing a criminal defendant on a contingency fee basis. Id. at 630. Zauderer
immediately withdrew the advertisement and apologized to the Office of Disciplinary
Counsel, assuring them that he would not accept any resulting employment. Id. He
subsequently was disciplined for violating Ohio Disciplinary Rule DR 2-101(A) with
respect to this advertisement. Because it offered unethical representation on a contingency-fee
basis in a criminal case, it allegedly constituted a message "false, fraudulent,
misleading, and deceptive to the public." Id. at 631 (citing Ohio Disciplinary
Rule DR 2-101(A)). A panel of the Board of Commissioners on Grievances and Discipline
of the Supreme Court of Ohio, upon review of the matter, found the advertisement
deceptive. However, the Board did not find the offer of an unethical service to
be the deceptive component. Instead, the deception lay in the fact that a client might
be convicted for a lesser offense than drunk driving and still be liable for fees, a
message 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 Model
Code 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 with
violating Ohio Disciplinary Rules DR 2-101(B), DR 2-103(A), and DR 2-104(A). Id. at
632-33. Specifically, the attorney allegedly violated DR 2-101(B) because the advertisement
contained an illustration, was not dignified, and contained information that
fell outside of the twenty designated informational categories to which attorney advertisements
were limited. Id. at 632. DR 2-103(A) prevents solicitation of employment
to a person who did not seek legal advice. DR 2-104(A) prevents a lawyer from
accepting employment that results from such unsolicited advice. Id. at 633. Additionally,
the lawyer allegedly failed to disclose certain required information; Ohio Disciplinary
Rule 2-101(B)(15) provided that any contingent fee advertisement disclose
"whether percentages are computed before or after deduction of court costs and expenses."
Id. The Ohio Disciplinary Rule DR 2-101(B) was similar to the disciplinary
rule promulgated in the ABA's Model Code; however, certain designated informational
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 cited
Bates and In re R.M.J. as a defense). Additionally, Zauderer raised a due process

1990]
SOLICITATION BY LAWYERS
whether a state may discipline an attorney for publishing nondeceptive
newspaper advertisements to solicit business and on whether a
state may seek to prevent the public from being deceived by requiring
attorneys to disclose fee arrangements in their advertisements.
The Court applied the test enunciated in Central Hudson to determine
whether the commercial speech at issue was entitled to limited
first amendment protection. 1 8 7 The Court found two prohibitions
clearly impermissible: (1) prohibitions on solicitation of legal business
through advertisements containing advice and information regarding
specific legal problems and (2) prohibitions against the use
of illustrations in advertising." ' The state had contended that a
broad prophylactic rule was necessary to ensure that individuals
were not encouraged to institute litigation based on inaccurate and
ambiguous statements, or to ensure that individuals were not
manipulated through the use of illustrations. The Court rejected
both contentions. '89 The state had failed to meet its burden of showing
that the ban on advertising directly advanced substantial state
interests through the least restrictive means available, thereby failing
under the Central Hudson test. 190 An attorney may not be disciplined
for the solicitation of legal business through print advertising
that contains truthful, nondeceptive information and advice about
the legal rights of potential clients. '9
While striking down absolute prohibitions on advertising, the
Zauderer Court did not invalidate the rule that required that attorney
advertisements affirmatively disclose certain information. Specifically,
the rules required that the advertisement explain the
method of computation for contingency fees when it offered services
challenge to the disciplinary proceeding itself, claiming he was afforded no notice of
the charges against him. Id. at 636. See supra note 183. The Court summarily rejected
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 illustrations
was tantamount to an undignified advertisement. Id. at 647. Referred to by this
author as the "death of dignity," in that it resulted in an elimination of the requirement
that advertisements be dignified, the Court stated the principle as follows:
[A]lthough the State undoubtedly has a substantial interest in ensuring
that its attorneys behave with dignity and decorum in the courtroom, we
are unsure that the State's desire that attorneys maintain their dignity in
their communications with the public is an interest substantial enough to
justify 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 restrictions,
the Supreme Court continually has focused on the dissemination of truthful
information to consumers, rather than on the states' attempt to use restrictions to
disadvantage certain competitors within the profession. See McChesney, supra note
160, at 99.

MAINE LAW REVIEW
on that basis. 1 " 2 The Court recognized that in some situations a
compulsion to speak may be equally violative of the first amendment
as a prohibition against speech. However, as long as disclosure
requirements are reasonably related to a state's interest in preventing
deception of the consumer, the lawyer's rights receive adequate
protection. 193 Since the informational value to consumers is the primary
justification for protecting commercial speech, compelled disclosure
can be less rigorously scrutinized than flat prohibitions on
the dissemination of information. 19' Because the possibility of deception
was "self-evident" when an advertisement refers to a contingent-fee
arrangement without mentioning liability for costs, the
Court found the state's position was "reasonable enough" to support
the disclosure requirement. 195 In so doing, the Court clearly signaled
it would be considerably more lenient in its treatment of compelled
disclosure than outright bans on commercial speech.
The Zauderer Court took the opportunity to review again the distinctions
between attorney advertising and attorney solicitation. Reflecting
on the Ohralik decision, the Court noted that in-person solicitation
was "a practice rife with possibilities for overreaching,
invasion of privacy, the exercise of undue influence, and outright
fraud. 1 9 Noting that in-person solicitation raises "unique regulatory
difficulties because it is 'not visible or otherwise open to public
scrutiny,'" the Court stated that prophylactic rules against solicita-
tion for pecuniary gain are justified.
The Court maintained the distinction between the two forms of
lawyers' commercial speech, sustaining a ban on certain in-person
solicitation while carefully scrutinizing advertising rules. Although
the Court previously held that general mailings to the public constituted
advertising, 9 s the Court acknowledged in Zauderer that even
print advertisements are a form of solicitation. 9 9 Thus, following
Zauderer, the legal profession again was left without clear delineations
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 Supreme
Court's first affirmation of a bar's disciplinary action against a lawyer for violating its
advertising 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)). The
Court noted that "in-person solicitation of professional employment by a lawyer does
not stand on a par with truthful advertising about the availability and terms of routine
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.
1 97
[Vol. 42:369

1990]
SOLICITATION BY LAWYERS
H. Shapero: Direct Mail Solicitation Permissible
More recently, in Shapero v. Kentucky Bar Association, 200 the
Court again focused on the advertising-solicitation controversy. The
issue presented by the case was whether a state may categorically
prohibit solicitation when a lawyer sends truthful, nondeceptive letters
to a closely defined set of potential clients known to face a designated
legal problem. 201 The attorney in Shapero prepared a letter
to be sent to potential clients known to be defendants in foreclosure
suits, offering to give such individuals "FREE information" on how
they could keep their homes. 20 2 In a fact-specific review, the Supreme
Court distinguished written advertisements containing truthful
and nondeceptive information from in-person solicitation by lawyers
for profit. 20 3 The Court rejected the state's contention that an
absolute ban on targeted, direct-mail solicitation was permissible because
of the serious potential for abuse inherent in all direct solicitation
by lawyers. 2 " Rather, the relevant inquiry was "whether the
mode of communication poses a serious danger that lawyers will exploit
any such susceptibility [of the client]," not whether clients susceptible
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 was
Supreme Court of Kentucky Rule 3.135(5)(b)(i) that provided:
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.
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 the
above-noted rule, the Kentucky Supreme Court replaced Rule 3.135(5)(b)(i) with
ABA Model Rule 7.3. Id. at 470-71. See supra note 100. ABA Model Rule 7.3, however,
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, direct
mail advertising does not fit neatly into either of the dichotomous "advertising" or
"solicitation" labels. Perschbacher & Hamilton, Reading Beyond the Labels: Effective
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 of
Disciplinary Counsel, 471 U.S. 626, 641-42 (1985)).
204. Id. at 473-75. The state had argued that the present case was only "Ohralih
in writing." Id.
205. Id. at 474. The lower court disapproved of the letter in question because it
targeted people known to need legal services, rather than those generally who might
find such services useful. Id. at 473. Noting that the latter group would include the
former, the Supreme Court asserted that "the First Amendment does not permit a
ban on certain speech merely because it is more efficient; the State may not constitu-

MAINE LAW REVIEW [Vol. 42:369
The Shapero Court stated that the mode of targeted, direct-mail
solicitation "poses much less risk of overreaching or undue influence"
than in-person solicitation. 206 Noting that it had not before
"distinguished among various modes of written advertising to the
general public, '20 7 the Court asserted that neither print advertising
nor direct-mail solicitation involved "'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.'
"208 Like any print advertising or general mailing,
targeted letters convey information upon which the recipient can reflect
and exercise personal choice as to whether or not to act upon
it. 20 9 The same is not true with in-person solicitation. 10 Mindful of
the fact that targeted, direct-mail solicitation may present greater
opportunities for abuse or mistake than other forms of print advertising,
the Court stated that this alone will not justify a total ban on
direct-mail solicitation. 211 Less restrictive means exist for regulating
potential abuses; for example, lawyers might be required to file all
such solicitation letters with the state. 212
tionally ban a particular letter on the theory that to mail it only to those whom it
would 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 advocate
breathing down his neck," the recipient of a targeted letter can simply throw it
away. Id. at 475-76.
207. Id. at 473.
208. Id. at 475 (quoting Zauderer v. Office of Disciplinary Counsel, 471 U.S. at
642).
209. Id. at 475-76.
210. Id. at 476.
211. Id. The State argued that a personalized letter to an individual presents an
increased risk of deception because it could lead an individual to believe that the
lawyer is more familiar with the case than he is actually or that a more serious legal
problem exists for the individual than actually does.
212. Id. Prior to Shapero, the permissibility of targeted mailings by lawyers to
individuals known to have specific legal problems was considered by a number of
jurisdictions with varying results. See, e.g., Adams v. Attorney Registration and Disciplinary
Comm'n., 801 F.2d 968, 973-74 (7th Cir. 1986) (rule banning targeted, direct
mailings by attorneys to potential clients properly enjoined because such rule not
likely to withstand constitutional review; state's interest in protecting public not substantial);
State v. Moses, 642 P.2d 1004, 1007 (Kan. 1982) (attorney mailing 150 letters
to homeowners offering assistance in selling homes "By Owner" impermissible as
solicitation); In re Appert, 315 N.W.2d 204, 212 (Minn. 1981) (attorney mailing 250
copies of brochure warning of dangers associated with use of "Dalkon Shield" permissible;
rule proscribing direct-mail solicitation violated first amendment); In re von
Weigen, 63 N.Y.2d 163, 171, 470 N.E.2d 838, 841, 481 N.Y.S.2d 40, 43 (1984) (attorney
mailing to victims and families of those injured or killed in collapse of Kansas
City Hyatt sky-walk permissible; rule banning direct mail solicitation to such accident
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 500-1000
letters to defendants in municipal court cases informing them new law may allow
judgment debtors to forestall collections and inviting reader to call attorney imper-

1990]
SOLICITATION BY LAWYERS
In Shapero, the Court recognized two forms of commercial speech
by lawyers. Focusing on the mode of communication, in-person solicitation
of potential clients can be prohibited, but any truthful
written communication disseminated to potential clients is permitted.
Because the risk of overreaching or undue influence is diminished
in the latter, the Court deliberately chose not to distinguish
among the various types of written advertising and mail solicitations
when assessing attorney conduct. Having acknowledged in Zauderer
that even print advertisements are a form of solicitation, 1 3 Shapero
further demonstrated that the median that divides advertising from
solicitation is narrow. Because all solicitation is not precluded following
Shapero, the line over which an attorney may not step when
charting a course between proper advertising and improper solicitation
remains ambiguous. In dicta, however, the Court has impliedly
authorized states to forbid for-profit in-person solicitation as a prophylactic
measure. 214
L State University of New York v. Fox: Modification of the
Least Restrictive Means Test
In 1989, in the case of Board of Trustees of State University of
New York v. Fox (SUNY), 2 1 5 the Supreme Court considered the constitutionality
of a university regulation that prohibited private commercial
enterprises from operating on university campuses or in facilities
furnished by the university. 210 As a commercial speech case,
SUNY has direct implications for lawyer advertising and solicitation
cases. In evaluating the university's restriction on commercial
speech, the Court sought to modify the least restrictive means analysis
formulated in Central Hudson by relegating certain portions of
their preceding language to the status of dicta. Positioning to hold
the least restrictive means test inapplicable in the commercial
speech 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 expended
in his appeal before the United States Supreme Court. Shapero v. Kentucky
Bar Ass'n, 57 U.S.L.W. 3769 (U.S. May 23, 1989). In denying respondent's claim for
fees, the court reasoned that jurisdiction to grant or deny permission to send advertising
lay with the Kentucky Attorneys Advertising Commission. Id. Since respondent
failed to appeal the Commission's adverse ruling against him personally, he could not
claim fees under 42 U.S.C. 1988. His appeal to the United States Supreme Court
merely concerned an advisory opinion that did not deprive him of any rights secured
by 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 "Tupperware"-type
home products party held in a dormatory room. Id. at 3030.

MAINE LAW REVIEW
[Vol. 42:369
port this view-for example, the statement in Central Hudson itself
that "if the governmental interest could be served as well by a
more limited restriction on commercial speech, the excessive restrictions
cannot survive." We have indeed assumed in dicta the
2 17
validity of the "least restrictive means" approach.
To bolster a "more flexible meaning for the Central Hudson test,"
the SUNY Court looked to prior cases that stated that restrictions
on commercial speech be "narrowly drawn" and "no more extensive
than necessary to further substantial interest." 21 8 The Court then
advocated a looser interpretation of the word "necessary." The
Court noted that a prior holding had likened the application of the
Central Hudson test to the application of the test to validate time,
place and manner restrictions. 21 The latter did not require a least
restrictive means analysis, but only that restrictions be 'narrowly
tailored' to serve a significant government interest. 2 20 Therefore, the
majority believed it would be incompatible to apply a more rigid
standard to commercial speech. The Court asserted that in evaluating
restrictions on commercial speech, its decisions require the
following:
a "'fit' between the legislature's ends and the means chosen to accomplish
those ends,"-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
2 21
means narrowly tailored to achieve the desired objective.
In a dissenting opinion, Justice Blackmun stated that, in holding
the least restrictive means test inapplicable to commercial speech
cases, the majority had to recast contrary language from preceding
decisions . 2 "Indeed, to reach its result, the majority must characterize
as 'dicta' the Court's reference to 'least restrictive means'
analysis in [Zauderer,] although this reference seems integral to the
Court's holding that the ban on attorney advertising at issue there
was not 'necessary to the achievement of a substantial governmental
217. Id. at 3033.
218. Id. at 3033 (citing In re R.M.J., 455 U.S. 191, 203, 207 (1982)). See infra
notes 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 Olympic
Comm., 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).

1990]
SOLICITATION BY LAWYERS
interest.' ,223 While the analysis of the case appears strained, SUNY
can be read as rendering the least restrictive means standard inapplicable
to regulations affecting commercial speech. Apparently, the
first amendment can be satisfied by a fit between the state interest
and regulation which is "reasonable," "in proportion to the interest
served," or "narrowly tailored to achieve the desired objective."
IV. PERIMETERS OF LAWYERS' COMMERCIAL SPEECH
A. Present Restrictions Impermissibly Restrictive
As the Supreme Court considered lawyer commercial speech cases,
the ABA responded by proposing ethical rules that it considered
compatible with the Court's decisions. 224 In response to Shapero,
the ABA amended the Model Rules, condemning only in-person and
live telephone contact as impermissible solicitation, when the lawyer's
pecuniary gain is a significant motive. 25 While the ABA attempted
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, the
offending disciplinary rules of the Model Code were amended to allow advertising,
although numerous restrictions on the time, place and manner were included in the
revision. See supra notes 94 & 138. Still later, it became evident in R.M.J. and
Zauderer that such strict regulation of language in lawyer advertising would also not
stand. See supra note 96 and accompanying text. The ABA was moving toward the
implementation of the Model Rules to replace the Model Code. See supra note 96
and accompanying text. The new advertising rule eliminated any delineated regulatory
language. In its place stood a general proscription that any such communication
not be false or misleading. See supra notes 97 & 100.
At the same time, the ABA responded to the Supreme Court decisions concerning
attorney solicitation of clients. Historically, the bar had flatly prohibited attorney
solicitation. See supra notes 87-99 and accompanying text. Mailings to individuals
with whom one did not have previous personal or professional contact constituted
improper 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 dissemination
of which could not be categorically prohibited under the first amendment. The
ABA responded to the Court's rulings in the Model Rules. Mindful of the Court's
condemnation of in-person solicitation in Ohralik, the new Model Rules prohibited
solicitation of individuals with whom there is no family or prior professional relationship
and when pecuniary gain is a significant motive of the lawyer. The definition of
"solicit" includes any communication (written or spoken) directed toward a specific
recipient 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 be
mailed or autodialed make it possible for a prospective client to be informed
about the need for legal services, and about the qualifications of
available lawyers and law firms, without subjecting the prospective client to
direct inperson or telephone persuasion that may overwhelm the client's
judgment.
MODEL RuLEs, supra note 97, Rule 7.3 comment 2 (1989).

MAINE LAW REVIEW
[Vol. 42:369
dates, one may ask whether the Supreme Court's analysis, or the
bar's implementation thereof, has been satisfactorily developed. The
previous review of the Supreme Court's rationale in granting partial
first amendment protection to lawyers' commercial speech reveals
that it is the free flow of truthful information to the public that
forms the primary justification for this extension of constitutional
protection. 22 Provided the questioned speech is not misleading or
false, an attempt to regulate such speech must be no more extensive
than is necessary to achieve a substantial state interest that the regulation
directly advances. 22 7 If one reflects on how the Court has analyzed
lawyer "advertising," and then extends the Court's analysis a
step further, the Court's rationale applies just as effectively to currently
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 of
dealing with the limited risk of overreaching and undue influence
associated with this mode of communication. 228 Targeted letters
convey information to the individual upon which the person can reflect
and exercise personal choice as to whether or not to act upon
the information conveyed. 229 A similar analysis can be applied just
as satisfactorily to all forms of telephonic communication. As the
recipient of a targeted letter has the option to read the letter and to
dispose of it, a phone call recipient can simply hang up the telephone
at any time. While greater opportunities for abuse or mistake
arguably may exist with live-telephone contact than with general or
direct-mail solicitation, a blanket prohibition on live telephone contact
is not a formulation that is tailored narrowly enough to achieve
the states' goals. Clearly less restrictive means for regulating these
abuses, short of a total ban on live telephone calls, exist. For instance,
just as a state may require lawyers who send targeted, directmail
solicitations to submit a copy of such letters to a state agency
and identify the mailing as "advertising, '23 0 the state could require
that lawyers who elect to solicit by telephone file a report outlining
the projected content of their telephone contact, along with a followup
report summarizing the exchange. Additionally, lawyers who
chose to solicit by telephone may be required to record the conversation
and explicitly to disclose the purpose of their telephone call
in 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 for
discussion of recent modification of the Central Hudson "least restrictive means" test
in 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).

1990]
SOLICITATION BY LAWYERS
spective client. 2 31 As a check against coercion, duress, or harassment,
the lawyer would be required to invite the recipient of the call to
discontinue the communication at designated points in the conversation.
Furthermore, the lawyer would be required to discontinue
contact at once should it become known that the prospective client
2 3
is not interested in being pursued.
The same rationale applied to live-telephonic contact can be further
extended to the situation involving in-person solicitation. Just
as the recipient of a targeted letter can throw the correspondence
away, and the recipient of a telephone call can hang up, the person
solicited by a lawyer on a face-to-face basis has the option of walking
away from the conversation or asking the lawyer to leave. While
opportunities for abuse or mistake may be present here, and the potential
for overreaching or undue influence exists, more reasonable
alternatives to an absolute prohibition on in-person solicitation can
be found so as to render categorical bans a disproportionately restrictive
measure under the Court's current constitutional analysis.
A lawyer who chooses to solicit clients on an in-person basis could
be required to notify a state entity of the purported contact, to report
any subsequent meeting, and to record and retain initial meetings
with prospective clients on tape. Should it become known to the
lawyer that the prospective client may not want to be solicited, the
lawyer would be required to discontinue contact immediately and to
retain a record of that fact. Additionally, lawyers who solicit on an
in-person basis could have their retainer agreements made subject to
a lengthy recission right by the client. While any client may discharge
a lawyer at any time, subject to an obligation to pay the reasonable
value of the services rendered, the solicited client could retain
the right to rescind the agreement without liability for a
designated period. 2 33 Regardless of where on the spectrum one puts
231. The 1989 version of Model Rule 7.3 provides for the labeling of written or
recorded communications as "Advertising Material." See supra note 100. The
Zauderer Court indicated that it would be more lenient in its treatment of rules requiring
disclosure of certain information than rules implementing prohibitions
against 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 solicited
by 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 information
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 note
202, at 273. While many clients may not reconsider an arrangement with a lawyer
until the service is actually rendered, a cooling off period would still give consumers a
chance to reflect on their situation and perhaps seek additional advice. While not a
perfect tool, when used in combination with regulatory review, it could well help foster
intelligent lawyer selection. See generally Note, Attorney Solicitation of Clients:

MAINE LAW REVIEW
[Vol. 42:369
the potential coercive force associated with in-person or live-telephone
solicitation, the fact remains that such communication clearly
advances the free flow of truthful information that the states seek to
achieve. Because significantly less restrictive and more precise alternatives
exist to safeguard the states' concern that the public be protected
from the coercive force of a trained advocate, a categorical
proscription on in-person solicitation cannot be considered reasonable
under either the least restrictive means analysis or the SUNY
test. It is not a means tailored narrowly enough to achieve the government's
goals. Blanket bans on live-telephone and in-person solicitation
are not in proportion to the state interest served.
In his dissent in Bates, Justice Rehnquist stated that "once the
Court took the first step down the 'slippery slope' in [Virginia Pharmacy],
the possibility of understandable and workable differentiations
between protected speech and unprotected speech in the field
of advertising largely evaporated. '23 4 This' prediction has come to
fruition. When applying a standard of least restrictive means, one
can always devise a less restrictive alternative to blanket prohibitions
on commercial speech. When applying a standard that falls
short of least restrictive means, a standard requiring a disposition
that is in proportion to the interest served, blanket prohibitions on
in-person communication do not fit reasonably with the goal of
preventing overreaching or undue influence. Taking this premise to
its logical conclusion, any communication by a lawyer to a potential
client 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 "the
need to reconsider Bates 2 35 and noted that Zauderer was "the culmination
of a line of cases built on defective premises and flawed
reasoning. '236 Focusing on the professionalism aspect, Justice
O'Connor wrote that membership in a profession "entails an ethical
obligation to temper one's selfish pursuit of economic success1, 2 17
and that restrictions on advertising and solicitation by lawyers "act
as a concrete, day-to-day reminder to the practicing attorney of why
it is improper for any member of this profession to regard it as a
Proposed Solutions, 7 HoFsTR L. REv. 755 (1979). It has also been suggested that
with the curtailment of prohibitions on direct attorney-client contact, forms of abuse
could also be proscribed by "stringent control over contingent fee agreements" that
would "require more equitable graduated fee formulas that bear some relationship to
the 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.

1990]
SOLICITATION BY LAWYERS
trade or occupation like any other." ' 238 Justice O'Connor believed
practices relating to lawyers' commercial speech are not a fit subject
for constitutional adjudication and should therefore be left to the
state legislatures." 9 Feeling the lawyer commercial speech cases
have gone too far, Justice O'Connor would clearly like to see more
restrictions on lawyer advertising and solicitation, not less. However,
it appears she foresees that the Court's present analytical guidelines
cannot viably support a categorical ban on all in-person solicitous
conduct. A lowering of the standard required in commercial speech
cases from least restrictive means, to some lesser standard in SUNY,
may well be an attempt by the Court to avert the constitutional demise
of any categorical ban on lawyers commercial speech. Interestingly,
Justice O'Connor was joined in her dissent in Shapero by
Chief Justice Rehnquist and Justice Scalia. 24 0 These three Justices,
who were part of the majority in SUNY, want to reconsider the entire
line of legal advertising cases. If one-third of the Court believes
that regulation of lawyers' commercial speech should not come
within the purview of the Constitution, the move away from the
least restrictive means standard in SUNY may be an attempt to
buoy the viability of categorical bans on in-person solicitation until
the matter can undergo further study and perhaps be relegated to
the state legislatures. As the matter presently stands, the legal foundation
upon which the lawyer advertising and solicitation cases rest
is clearly not a firm footing.
While the Court may well be setting the stage for eliminating regulation
of lawyers' commercial speech from constitutional adjudication,
at present, restrictions on such speech are still subject to first
amendment scrutiny. However, even applying the Court's more permissive
standard enunciated in SUNY to categorical bans on in-person
and live-telephone solicitation, clearly far less restrictive and
more precise means exist for safeguarding the underlying governmental
interests. If one extends the implemented analysis and the
explicit holding of SUNY and Shapero, the 1989 amendments to the
Model Rules are still impermissibly restrictive. Instead of merely
mirroring the mandates of the Court, the Rules should extend the
238. Id. at 490. Justice O'Connor states that "[t]he roots of the error in our attorney
advertising cases are a defective analogy between professional services and standardized
consumer products and a correspondingly inappropriate skepticism about
the States' justifications for their regulations." Id. at 487.
239. Id. at 485. Justice O'Connor asserts that "the States should have considerable
latitude to ban advertising that is 'potentially or demonstrably misleading,' as
well as truthful advertising that undermines the substantial governmental interest in
promoting 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 Court
reflect the values of the Court, with the first amendment being molded to support
these contentions.

MAINE LAW REVIEW
analysis of the Court to its rational conclusion. While the Supreme
Court has indicated that rules prohibiting in-person solicitation for
pecuniary gain are permissible, that fact does not obligate the bar to
embrace such a prohibition. Whether or not one agrees with the propriety
of extending constitutional protection to lawyers' commercial
speech, under the Court's current analysis, a blanket prohibition on
in-person and live-telephone contact of potential clients violates the
first amendment. The bar should therefore implement the underlying
rationale that the Court has imposed and eliminate restrictions
on commercial speech short of that which is misleading, deceptive,
or coercive.
B. Negative Impact of Restrictions on Bar
[Vol. 42:369
In addition to the first amendment problems surrounding lawyers'
commercial speech, the bar's implementation of blanket prohibitions
on solicitation places the small law firm and the solo practitioner at
a disadvantage relative to the more established lawyer. In his dissenting
opinion in Ohralik, Justice Marshall noted "[n]ot only do
prohibitions on solicitation interfere with the free flow of information
protected by the First Amendment, but by origin and in practice
they operate in a discriminatory manner. ' 241 If we look at the
practical mechanics of law practice, established lawyers have long
been permitted to engage in conduct that can be considered solicitous.
Under the Model Code, for instance, lawyers were permitted to
mail announcement cards to personal friends, relatives, and people
with whom they had professional contact. 242 By interpreting the category
of "personal friends" broadly, the established lawyer who had
numerous club and social connections was at a distinct advantage;
that lawyer had access to avenues for expanding prospective business
contacts the less well-established lawyer did not 2 43 Unlike the
Model Code, the Model Rules make no reference to "personal
friends" when discussing solicitation proscriptions, but instead prohibit
contact with individuals "with whom the lawyer has no family
or prior professional relationship. ' 24 4 While the "personal friend"
category has been eliminated, the new standard still works to an established
lawyer's advantage because the phrase "prior professional
relationship" may also be broadly interpreted. If a lawyer has previously
represented a business entity, one may ask whether that permits
the lawyer to contact individuals associated with that business
241. 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 services."
Id. at 475.
242. See supra note 93.
243. See supra note 175.
244. See supra notes 98 & 100.

1990]
SOLICITATION BY LAWYERS
as employees or equity owners. If a lawyer has represented an organization,
one may ask whether that permits the lawyer to contact individual
members of the formerly represented group. In essence, a
lawyer has probably never been disciplined for in-person solicitation
of a corporate vice president during a round of golf.
The current ethical rules may in fact be viewed as an expression
of the need to protect various interest groups. Assuming that states
wish to use their rules to protect the interests of the potential client
population rather than the interests of lawyers, 240 they may employ
prophylactic measures short of categorical prohibitions to accomplish
this goal. Implementing less restrictive prohibitions would also
have a direct and beneficial impact on the profession. By permitting
all advertising and solicitation short of that which is false, misleading,
or coercive, the public would be better informed. The profession
would thereby equalize the competitive opportunities of the solo
practitioner or small law firm with those long enjoyed by established
practitioners. Regardless of the motivation behind the rules of the
self-regulated legal profession, the impact of the nonsolicitation
rules falls on the providers of the service 4 7 as well as the recipients.
C. Negative Impact of Restrictions on Society
Early in the history of lawyering, solicitation was naturally quelled
by the attitude that a controversy properly concerned only persons
actually involved in the underlying transaction. Those who
sought to intervene on behalf of another were looked upon with suspicion
and distrust. 2 4 During the advent of the law as a profession,
prohibitions against solicitation appeared as principles of etiquette
among a small, homogeneous community of practitioners. 24 0 Today,
the self-regulated legal profession has chosen to implement rules of
conduct which prohibit certain types of solicitation. 20 While these
rules have questionable constitutional legitimacy, advertising and
solicitation actually perform similar informational functions. Less
restrictive 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 legal
services from the public, 251 they also may be discouraging conduct
245. See S. Gi.aRS & N. DORSEN. REGULATION OF LAWYER&S PROBLES OF LAw AND
ETmcs 85 (2d ed. 1989).
246. But cf. McChesney, supra note 160, at 102 (Deception rationale for upholding
bans on commercial speech may mask predatory reasons for traditional
restrictions.)
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 criticized
targeted, direct mailings to potential clients, recipients of letters have praised such a
2 '

MAINE LAW REVIEW
[Vol. 42:369
that the legal community should promote. Professor Monroe Freedman
gives the following example of such conduct:
A woman arrives at a metropolitan courthouse holding a small boy
by the hand. She speaks almost no English at all. She is intimidated
by the imposing surroundings, and she is frightened and confused.
All that she knows is that she is required to be some place in
that building because her son has been arrested or her landlord is
attempting to evict her family. People brush by her, concerned
with their own problems. Then a man appears, smiles at her, and
asks her in her own language whether he can help her. Through
him, she meets and retains the man's employer, a lawyer who
guides her to the proper place and who represents her interests. 252
In this illustration, the attorney's actions subsequently were condemned
as solicitous conduct. 25 3 Professor Freedman suggests that
the lawyer involved should have been given a citation as "Attorney
of the Year," rather than have been subjected to disciplinary proceedings
and censure by the court. 254 The Model Rules of Professional
Conduct seek to punish a lawyer's solicitous behavior when it
is motivated by pecuniary gain.255 In Professor Freedman's example,
a lawyer who wishes to get reasonable compensation for his services
takes the risk that such actions may be characterized as impermissible
solicitation. The lawyer might not desire payment but rather
seek favorable publicity that may ultimately generate more future
business, thereby reaping an indirect financial reward. Again, some
2 might argue that this also is 0
an impermissible form of solicitation.
practice claiming it helped them easily select a lawyer who was knowledgeable about
the 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 Freedman's
illustration, inquiring of students whether the lawyer's actions warrant condemnation
or commendation. See M. SCHWARTZ & R. WYDIK, PROBLEMS IN LEGAL
ETHICS 59 (1988).
255. One may question why the Court and the bar found such significance in the
pecuniary gain of the lawyer as a component of impermissible solicitation. While the
Court considered the financial motivation of the lawyer in Ohralik, and lack thereof
in Primus, condemning the former's contact with potential clients, it does not follow
that the lawyer's pecuniary gain should be a necessary factor for a finding of improper
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 justification
for determining the propriety of that encounter based on whether the lawyer
will get a fee. See also supra note 100.
256. While raising the hypothetical for reflection, it is unlikely that the lawyer
would be condemned for this conduct. When referring to the pecuniary gain in
Primus, Justice Powell noted that the situation was not one "where the income of the
lawyer who solicits the prospective litigant or who engages in the actual representation
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

1990]
SOLICITATION BY LAWYERS
In fact, some forms of in-person solicitation have a positive impact
on society and the profession. 25 7 Even though in-person solicitation
is a mode of communication that could be exploited by lawyers,
provided available remedial measures were in place,
distinctions between permissible advertising and impermissible solicitation
would be insignificant. This is not to suggest that direct
solicitation of clients should be actively encouraged by the bar.
Rather, in-person solicitation that is neither coercive nor harassing
ought not be prohibited.
D. Reaction of the Bar
Within the synergy of self-regulation, 258 and possibly with the goal
of not losing that privilege, " the bar has been very sensitive to any
negative publicity. For instance, following the gas leak tragedy at
the Union Carbide plant in Bhopal, the public read how American
lawyers flocked to India and took on record case loads of victims. " '
In response, California trial attorneys voted to censure American
lawyers who solicited Bhopal clients and the American Council of
Trial Lawyers passed a resolution condemning mass-disaster solicitation.
" More recently, in Dallas, Texas, the press characterized
lawyers as "vultures" following the 1985 crash of a Delta jet at the
Dallas-Fort Worth International Airport. 2 2 As a result, representatives
of the state bar of Texas took the aggressive preemptive approach
of frequenting the site of a 1988 plane crash at Dallas-Fort
Worth International Airport to advise victims of their rights and to
would not affect the lawyer's income in and of itself. Also, if a contrary position were
taken, fear of its implementation (justified or not) could have an adverse effect on pro
bono legal services.
257. For example, while solicitation in the legal profession has not received antitrust
protection, it nevertheless has numerous procompetitive effects. One commentator
has noted.
First, it promotes competition by enabling the large number of today's underemployed
attorneys to obtain clients and stay in practice. This competitive
pressure on the marketplace may result in increasingly high standards
for the quality of legal work. In addition, solicitation, which permits the
free flow of information about the law between lawyer and consumer, may
enhance competition by increasing the demand from clients familiar with
legal issues and the legal process. Finally, solicitation can benefit the consumer
by tailoring legal services and information to the needs and interests
of 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 First
Amendment, WAss. U.LQ. 93, 105 (1978). See also Martyn, Lawyer Competence and
Lawyer 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.

418 MAINE LAW REVIEW [Vol. 42:369
monitor early arriving lawyers. 2 3
In addition to addressing lawyer response to mass disasters, the
bar also has been active in establishing goals and aspirations for the
profession as a supplement to the professional rules mandated by
the states. Following the Shapero case, the American Board of Trial
Advocates passed a resolution calling direct-mail advertising by lawyers
"unethical and in poor taste. 26 4 At the 1988 Annual Meeting of
the ABA, the House of Delegates adopted aspirational goals for lawyer
advertising in an effort to achieve advertisements that are effective
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. on
Advertising (1988). The ten "aspirational goals" adopted by the House of Delegates
are as follows:
1. Lawyer advertising should encourage and support the public's confidence
in the individual lawyer's competence and integrity as well as the commitment
of the legal profession to serve the public's legal needs in the tradition
of the law as a learned profession.
2. Since advertising may be the only contact many people have with lawyers,
advertising by lawyers should help the public understand its legal
rights and the judicial process and should uphold the dignity of the legal
profession.
3. While "dignity" and "good taste" are terms open to subjective interpretation,
lawyers should consider that advertising which reflects the ideals
stated in these Aspirational Goals is likely to be dignified and suitable to
the profession.
4. Since advertising must be truthful and accurate, and not false or misleading,
lawyers should realize that ambiguous or confusing advertising can
be misleading.
5. Particular care should be taken in describing fees and costs in advertisements.
If an advertisement states a specific fee for a particular service, it
should make clear whether or not all problems of that type can be handled
for that specific fee. Similar care should be taken in describing the lawyer's
areas of practice.
6. Lawyers should consider that the use of inappropriately dramatic music,
unseemly slogans, hawkish spokepersons, premium offers, slapstick routines
or outlandish settings in advertising does not instill confidence in the lawyer
or the legal profession and undermines the serious purpose of legal services
and the judicial system.
7. Advertising developed with a clear identification of its potential audience
is more likely to be understandable, respectful and appropriate to that audience,
and, therefore, more effective. Lawyers should consider using advertising
and marketing professionals to assist in identifying and reaching an
appropriate audience.
8. How advertising conveys its message is as important as the message itself.
Again, lawyers should consider using professional consultants to help
them develop and present a clear message to the audience in an effective
and appropriate way.
9. Lawyers should design their advertising to attract legal matters which
they are competent to handle.

1990]
SOLICITATION BY LAWYERS
tionally, the ABA adopted a model creed of professionalism,
reflecting the growing concern over tactics encompassing a "win at
any cost" mentality. 6
The bar's efforts to counter negative conduct are reminiscent of
the works of Hoffman and Sharswood in the nineteenth century. 2 "
While the current bar is the antithesis of that in the last century as
far as its regulatory power, new inspirational guides continue to reflect
the bar's perceived need to preserve legal professionalism. Few
members of the profession will dispute the fact that misleading and
coercive solicitation is despicable and that it has no place in the
practice of law. However, the fact remains that not all in-person solicitation
falls within this category so as to negatively affect the profession.
The bar's aspirational goals to maintain and elevate the professional
status of lawyers are indeed commendable. This persuasive
10. Lawyers should be concerned with making legal services more affordable
to the public. Lawyer advertising may be designed to build up client bases
so that efficiencies of scale may be achieved that will translate into more
affordable legal services.
Id.
266. See AB.A. SEC. ToRT & INs. PRAc. RE. 1988. A proposed example of a Lawyer's
Creed of Professionalism was adopted by the American Bar Association and
states in part:
Preamble
As a lawyer I must strive to make our system of justice work fairly and
efficiently. In order to carry out that responsibility, not only will I comply
with the letter and spirit of the disciplinary standards applicable to all lawyers,
but I will also conduct myself in accordance with the following Creed
of Professionalism when dealing with my clients, opposing parties, their
counsel, 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's
cause, my responsibilities as a lawyer include a devotion to the
public good.
2. I will endeavor to keep myself current in the areas in which I
practice and, when necessary, will associate with, or refer my client
to, counsel knowledgeable in another field of practice.
3. I will be mindful of the fact that, as a member of a self-regulating
profession, it is incumbent on me to report violations by fellow
lawyers of any disciplinary rule.
4. I will be mindful of the need to protect the image of the legal
profession in the eyes of the public and will be so guided when
considering methods and content of advertising.
5. I will be mindful that the law is a learned profession and that
among its desirable goals are devotion to public service, improvement
of administration of justice, and the contribution of uncompensated
time and civic influence on behalf of those persons who
cannot afford adequate legal assistance.
Id.
267. See supra notes 77-82 and accompanying text.

MAINE LAW REVIEW
posture, which relies on learning and conscience, 6 8 has added significance
today. As this Article demonstrates, the rules containing
blanket prohibitions of in-person solicitation lack firm foundation in
both a historical and legal context. Unlike aspirations, prohibitive
rules against in-person solicitation violate the first amendment.
V. CONCLUSION
[Vol. 42:369
In the early years of lawyering, the solicitation of clients was
looked upon with suspicion and distrust. During the formative period
of the legal profession, the solicitation of business was considered
both distasteful and unnecessary. This historical basis, coupled
with rampant commercialism of the legal profession during the nineteenth
century, prompted the leaders of the bar of this country to
formulate rules and codes of conduct prohibiting the solicitation of
clients by lawyers.
In recent years, the United States Supreme Court has had occasion
to review certain of these rules that restrict the commercial
speech of lawyers. Generally, the Court has struck down rules that
categorically prohibit either lawyer advertising to the general public
or written- communications directed toward specific individuals. The
Court has reasoned that, provided the speech in question was not
misleading or deceptive, regulation of such speech must be no more
extensive than is necessary to achieve a substantial state interest
that the regulation directly advances. Concluding in essence that
reasonable alternatives short of categorical bans were available to
achieve the state interests involved, the Court found blanket
prohibitions on advertising and targeted mailings to violate the first
amendment. In addressing the commercial speech of lawyers, the
Court distinguished in-person solicitation from advertising or other
written forms of communication. Emphasizing the risk of overreaching
and undue influence associated with in-person client contacts,
the Court impliedly authorized states to forbid categorically forprofit,
in-person solicitation as a prophylactic measure.
A review of the Court's analysis in lawyer commercial speech cases
reveals that one can always find some less restrictive alternatives to
blanket prohibitions on speech. Even if a regulation need only evidence
a reasonable fit with a substantial state interest, far less restrictive
means can be found. As with advertising and other written
forms of communication, in-person solicitation serves the function
of educating and conveying information to individuals regarding
their legal rights and available legal services. This flow of truthful
information to the public is just as beneficial to society as purely
commercial advertising, as long as it is not delivered in a fashion
268. See Young and Hill, Professionalism, 35 FED. B.N.& J. 251, 252 (1988), reprinted
in 93 CASE & CoM. 33, 34 (Nov.-Dec. 1988).

1990]
SOLICITATION BY LAWYERS
that is coercive or unduly burdensome. Alternative safeguards exist,
short of categorical bans, to reduce the risk of overreaching in the
in-person solicitation situation. Applying the analysis now implemented
by the Court in lawyer commercial speech cases, the present
restrictions on in-person and live-telephone solicitation violate the
first amendment.
In addition to lacking a firm foundation from a historical and constitutional
perspective, the current ban on in-person solicitation
negatively affects society by eliminating an important channel for
communicating public information. The nonsolicitation rules also
have a negative impact on the legal profession itself by placing the
small law firm and solo practitioner at a disadvantage to the more
established lawyer. An elimination of categorical bans on non-deceptive,
noncoercive in-person solicitation would allow lawyers to convey
much needed information regarding legal services to an underserved
public. States could then implement regulatory schemes
requiring explicit reporting and disclosure to safeguard against undue
influence and overreaching.
The recent reaction of the bar to overt in-person solicitation by
lawyers indicates a prevalent concern for the professional status of
the law and the maintenance of appropriate conduct and decorum
among its members. While this posture is commendable and should
be encouraged, the fact remains that the present rules restricting the
commercial speech of lawyers are constitutionally impermissible.
Whether or not one agrees with the appropriateness of in-person solicitation,
under the analysis which the United States Supreme
Court is presently implementing, the current rules that restrict such
solicitation by lawyers violate the first amendment. Categorical bans
on direct contact by lawyers have a tenuous historical basis because
they arose when the role of the legal profession in society was much
different than today. Continued restrictions will only have a negative
effect on both the profession in particular and the society in
general.