7 - Voice For The Defense Online

certified, or registered by a health care regulatory agency of this
state;
(2) w~ththe intent to obta~nprofessional employment for him,
self or for another, sends or knowingly pem~s
to be sent to an
ind~vidual who has not sought the person's employment, legal representation,
advtce, or cate a wntten communlcatton that:
(A) concerns an action for ~ersonal ~njury or wrongful
death or otherwise relates to an acctdent or drsaster involving the
person to whom the communicat~on is addressed or a relative of
that person and that was maded before the 31Y day after the date
on wh~ch the accident or disaster occurred;
(C) concerns an atrest of or tssuance of a summons to the
person to whom the communicatton IS addressed or a relatwe of
that person and that was matled before the 3Pc day after the date
on which the arrest or tssuance of the summons occurred,
TEX. PEN. CODE ANN.( 38.12(d) (Vernon 1994 &Snpp. 1999).
In Went for It, the State Bar of Flortda asserted that its
tmposition of a thirty-day moratorium on duect mail solicitations
of accident victlms and their families was designed to protect "the
psivacy and tranquil~ty of personal injury victims and their loved
ones against wsive, unsolictted contact by lawyers," and, in so
doing, to enhance the reputation of the legal professson.. Id. The
court concluded that the regulation satisfied the first requirement
of the Central Hudson test, noting that it "IS an effort to protect the
flagging reputattons of Florida lawyers by preventmg them from
engaging in conduct that. . . 'IS untversallyregarded as deplorable
and beneath common decency because of its intrusion upon the
special vulnerabtlity and private grief of victims or their families."'
Id at 625 (quotmg in re Ams, 599 A2d 1265, 1270 (N.J.
Sup.Ct.1992)).
W~th regard to the second prong of the Central Hudson test, the
Court ohsenred that the Flortda Bar had submitted a 106-page
summary of a two-year study of lawyer adverttsing and solxitation,
both statishcal and anecdotal. That ev~dence demonsuated, to the
Court's satisfaction, that the intrusion targeted by the prohibttion
resulted not from a lawyer's learning about an acctdent, but from
& confrontmg victm or relatives "whtle wounds are still open."
Id at 630. The Bar, satd the Court, IS concerned not merely with a
reciptent's "offense" at receiving such mformat~on, "but with the
demonstrable detrimental effects that such 'offense' has on the
The legdature substanttally rewrote the Texas barratry statute professton if regulates." Id at 631. Furthermore, the harm wh~ch
in 1993. Almost ~mmediately thereafter, a number of tnd~viduals the prohibition seeks to alleviate 'a as much a function of simple
challenged ~tsvalidity. InMoore w. Mdes, 843 ESupp.1124 (S.D. receipt of targeted sol~c~tations within days of accidents as it IS a
Tex. 1994), rev'd in part, 63 E3d 358 (5& Crr. 1995), cert denzed sub function of the letters' contents." Id. The Court, "[alfter scouring
nom., Venrura u. Moraks, 516 US. 1115 (1996), a federal dlsnict the record," was "satisfied that the ban . . . targets a concrete,
court held that several portmns, includmg subsections (d)(Z)(A) nonspeculative ham." Id at 628-29.
and (d)(2)(C), were unconstttuaonal and enjoined their enforcement.
The court reasoned that, under the Supreme Court's
dec~sion m Cenhal Htadson Gas 8 Ekctrlc Corp. v. Public Service
Commission of New York, 447 US. 557 (1980), the state had not
Drunk Driving
met the burden of just~fymg its ban on this type of commerc~al
. speech. The state chose to appeal only chat part of the dtstrict's
and all Misdemeanors
*
court rulrng that barred the state from imposing a thirtyday ban
on directmad sol~cttation of accident victims and their famihes.
Dunng the pendency of the appeal, the Supreme Court rendered
~tsdecision m FIorldaBar v Wentforlt, lnc., 515 US. 618 (1995).
In that case, the Court cons~dered the validtty of a rule of the State
Bar of Florida that prohibited attorneys "from sending targeted
dtrect-mad solic~tat~ons to victms and theu relanves for 30 days
following an acc~dent or disaster." Id at 620.
The Supreme Court's 5.4 deciston in Wentfor It represenw someth~ng
of a depammefrom the const~tutional protection first afforded
attorney advertising m Bates v. Srate Bar of Anzona, 433 US. 350
J d J
1 b
(1977), wherem the Court invalidated a state bar rule imposrng a JANE E. GRINDS
blanket ban on attorney advert~sing in Bates u. State Bar of
1
Arizona, 433 US. 350 (1977), wherein the Court mval~dqted a
24 Hour Jail Release
state bir rule rmposmg a blanket ban on attorney advertismg in
the publlc media, and affumed in Shapero w. Kentucky Bar Ass'n, As to the third requuement of Central Hudson, the Court noted
486 US. 466 (1988), where the Court struck'down a state's broad that, m mposing hmits on commercial speech, a state need not
ban on direct mail solicttat~ons by attorneys. In Went for It, the use the "least restrictive means" available to effect its purpose.
Court employed the test first announced tn Central Hudson to Rather, what is required is a "fiP between the government's end
determme the validtty of proh~bit~ons on commercial speech that and the means chosen to accompltsh those ends. Id at 632. The
is ne~ther mdeadmg nor concerns unlawful activity: 1 ) the Court could not eastly imagine the contours of a regulation that
government must assert a substantial interest in support of its might dist~nguish between victtms on the basis of "the severity of
regulation; 2) it must demonstrate that the regulation diuectly and the~r pain or rhe intensity of theit grief!' Id at 633. In addition, the
materially advances that interest; and 3) the regulation must be Court found, the ban exists only for a brief period, and durmg that
"narrowly drawn." Wenr for It, 515 US. at 624.
time there are many other ways for injured persons "to learn about
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