Shapero v Kentucky Bar Association (1988)

Indian professional-ethics rules treat solicitation and advertising by advocates strictly. American constitutional law has gone the other way. In Bates v State Bar of Arizona (1977) the US Supreme Court placed lawyer advertising within protected commercial speech; in Zauderer v Office of Disciplinary Counsel (1985) it struck down a ban on truthful newspaper advertisements about a specific legal problem; and in Ohralik v Ohio State Bar Assn (1978) it allowed a State to ban in-person solicitation altogether.

Shapero sits between those cases. It asks whether a targeted letter — sent only to people known to face a particular legal problem — is more like a newspaper advertisement (protected) or like a lawyer knocking on the door (bannable). The Court held it is like the advertisement. When you write on the Indian bar on solicitation, Shapero is the clearest statement of the opposite view, and O'Connor J's dissent gives you the argument for the Indian position in an American judge's words.

In 1985 Shapero, a member of the Kentucky Bar, applied to the Kentucky Attorneys Advertising Commission for approval of a letter he proposed to send "to potential clients who have had a foreclosure suit filed against them." It began: "It has come to my attention that your home is being foreclosed on. If this is true, you may be about to lose your home." It offered free information and ended: "Call NOW, don't wait. It may surprise you what I may be able to do for you."

"The Commission did not find the letter false or misleading." It nevertheless refused approval, because a Kentucky Supreme Court rule prohibited written advertisements "precipitated by a specific event or occurrence involving or relating to the addressee or addressees as distinct from the general public" — though it expressed the view that the rule violated the First Amendment under Zauderer. The Bar Association's Ethics Committee upheld the rule as consistent with ABA Model Rule 7.3. The Kentucky Supreme Court then deleted its rule but replaced it with Model Rule 7.3, which also banned targeted, direct-mail solicitation for pecuniary gain without any finding that the particular letter was false or misleading.

"This case presents the issue whether a State may, consistent with the First and Fourteenth Amendments, categorically prohibit lawyers from soliciting legal business for pecuniary gain by sending truthful and nondeceptive letters to potential clients known to face particular legal problems."

The judgment of the Kentucky Supreme Court was reversed and the case remanded. A State may not categorically ban truthful, non-deceptive targeted letters by lawyers to potential clients.

Lawyer advertising is protected commercial speech

"Lawyer advertising is in the category of constitutionally protected commercial speech." Following Zauderer, such speech that is not false or deceptive "may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest."

No distinction among modes of written advertising

"Our lawyer advertising cases have never distinguished among various modes of written advertising to the general public." If the letter were sent to everyone, opening "Is your home being foreclosed on?", it could not be banned; the Kentucky rule objected only that it went to those who actually needed the service. But "the First Amendment does not permit a ban on certain speech merely because it is more efficient".

Why Ohralik did not apply

Kentucky argued that a person facing foreclosure is "overwhelmed" and vulnerable to undue influence. The Court answered that such a person is equally vulnerable whether he receives a targeted letter or reads a newspaper advertisement. "The relevant inquiry is not whether there exist potential clients whose "condition" makes them susceptible to undue influence, but whether the mode of communication poses a serious danger that lawyers will exploit any such susceptibility." And: "In assessing the potential for overreaching and undue influence, the mode of communication makes all the difference."

Ohralik's ban on in-person solicitation rested on two things: face-to-face solicitation is rife with possibilities for overreaching, and it is hard to regulate because it is not open to public scrutiny. "Targeted, direct-mail solicitation is distinguishable from the in-person solicitation in each respect." There is no badgering advocate present and no pressure for an immediate answer. A letter "can readily be put in a drawer to be considered later, ignored, or discarded."

Less restrictive regulation is available

The Court accepted that a personalised letter carries increased risk of deception. But "merely because targeted, direct-mail solicitation presents lawyers with opportunities for isolated abuses or mistakes does not justify a total ban on that mode of protected commercial speech." The State can require the lawyer to file every solicitation letter with a state agency, "giving the State ample opportunity to supervise mailings and penalize actual abuses."

Part III — the particular letter (plurality only)

Four Justices went on to consider whether Shapero's own letter, with its underlined capitals and assurances, was overreaching. They found it presented no risk comparable to face-to-face solicitation, and left any argument that it was misleading to be raised on remand. White J (with Stevens J) agreed with Parts I and II but would have left these matters "to the state courts in the first instance."

Truthful and non-deceptive letters sent by a lawyer, for pecuniary gain, to potential clients known to face a particular legal problem are protected commercial speech under the First Amendment. A State may not ban them categorically; it may regulate them only to serve a substantial interest by means that directly advance it — for example, by requiring the letters to be filed with a supervising agency and penalising actual abuse. The rule allowing a total ban on in-person solicitation (Ohralik) does not extend to targeted written solicitation.

• Comparative question: Compare the approach of Indian law and American law to advertising and solicitation by lawyers. Use Shapero (with Bates, Zauderer and Ohralik as the Court describes them) for the American position: commercial speech, protected unless false or misleading; in-person solicitation may be banned, targeted letters may not. Then contrast the Indian position (see Bar Council of Maharashtra v M.V. Dabholkar), where solicitation is treated as professional misconduct.
• Argument point: the "mode of communication" test — whether the medium lets the lawyer exploit a vulnerable client — is a useful tool when discussing whether Indian rules should distinguish between in-person touting and written or online information.
• Balance your answer: quote O'Connor J's dissent to show that even within the US Supreme Court there was strong support for severe limits on lawyer advertising to preserve the legal profession "as a genuine profession".
• Caution: always say this is a decision of the US Supreme Court. It is persuasive comparative material only.