Lawyer Advertising

Lawyer Advertising

The article presents a U.S. Supreme Court’s decision regarding the constitutionality of Florida Bar’s rules prohibiting “personal injury lawyers” from soliciting victims or their relatives for a period of 30 days following an accident or a loss.

The issue at stake is whether such rules infringe the freedom of speech protected by the First and Fourteenth Amendments of the U.S. Constitution.

Indeed, with the ruling Virginia State Pharmacy Board v. Virginia Citizens Consumer Council, Inc. (1976), the Supreme Court invalidating a state statute which prohibited pharmacists from advertising the price of prescription goods, held for the first time that truthful commercial speech which did “no more than propose a commercial transaction” merited First Amendment protection.

On the other hand, the Florida Bar, stresses that while thorough surveys have demonstrated that targeted solicitations to accident victims and their relatives were generally quite unpopular among Floridians and reflected poorly on the profession, such distasteful solicitations also encroached on citizens’ constitutional right to privacy.

In Bates v. State Bar of Arizona (1976), the Supreme Court considered that legal advertising deserved first amendment protection.

But the court also said that purely commercial speech deserves a lesser degree of protection under the First Amendment (l. 105: ‘subordinate position’).

Consequently, the Florida Bar regulations meet constitutional standards. (Intermediate scrutiny)

In a dissenting opinion, Justice Kennedy endeavored to establish the need to protect lawyers’ right to solicit clients within a period of 30 days after they had suffered a personal injury.

He reminds that solicitations are not contracts and should clients regret having responded favourably to such targeted solicitations they still have the opportunity to pull out of the scheme.

He also claims that solicitations enable lawyers to provide information essential to their clients. Should lawyers be forbidden to solicit clients, the latter would not have access to vital information such as the necessity to enable counsel to gather evidence as quickly as possible, nor would lawyers have the possibility to dissuade their client from entering into settlement negotiations or evidentiary discussions with investigators for opposing parties.

In a nutshell, Justice Kennedy argues that the system itself may well deserve to be reformed. But clients should not be deprived of information essential to understand how that system works (l. 113-115: “The State’s restriction deprives accident victims of information which may be critical to their right to make a claim for compensation for injuries”).

Vocabulary:

Referral / referral service / referral profession

File an action for declaratory and injunctive relief

To be disbarred

Another Florida lawyer was substituted in his stead (= in his place)

Mindful of these concerns

In the wake of = in the aftermath of

Commensurately

Flagging reputation = waning reputation

To send targeted mail

Intrusion on privacy

It reflects poorly on the profession

As of June 1989…

The anecdotal record mustered by the Bar

Noteworthy for his breadth and detail (remarquable de par…)

Scavenger = an animal that feeds on carrion, or dead plant material /

To burgeon with criticism

Despicable = deserving hatred and contempt

Astounded = astonished

Ambulance chasing

To rent space on billboards

Telephone directories

To hold someone in the utmost contempt

Unsettle leading First Amendment precedents

To undercut a guarantee

To rescind a contract = revoke, cancel, repeal

It is of the essence = it is fundamental, essential / it is of the essence that …

To enter into settlement negotiations

Evidentiary discussions

A device