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Profession's image at heart of mail solicitation case

Image is everything.

And the image of lawyers is what's really at the heart of a Tampa case that is about to be reviewed by the U.S. Supreme Court.

The case challenges the Florida Bar's rule that stops personal injury lawyers from mailing solicitations to accident victims or their relatives within 30 days of an accident.

Basically, the lawyers want to pitch their services immediately. The Bar wants to limit behavior that could be seen as wanton ambulance chasing. Many lawyers across the country think this high court decision will reshape the way lawyers advertise.

The plaintiffs, G. Stewart McHenry, who owned a legal referral service called Went For It Inc. in Tampa, and John T. Blakely, a Clearwater personal injury lawyer, say the rule violates their First Amendment right to commercial free speech.

The Florida Bar says it doesn't.

When speech is for commercial purposes, it says, the government can regulate it by putting "narrowly tailored," reasonable restrictions on the time, place and circumstances of the speech.

The Bar insists that a 30-day waiting period on post-accident mail solicitations is a reasonable restriction that protects traumatized people who might not be emotionally able to evaluate lawyers' pitches.

The plaintiffs say the restriction isn't "narrowly tailored" and is therefore unconstitutional.

"It is absurd that probate lawyers can write, "Sorry your loved one died,' immediately after an accident, but personal injury lawyers can't even contact them until 30 days," said the plaintiff's attorney, Bruce Rogow, a professor at Nova Southeastern University Law School in Fort Lauderdale who has argued before the Supreme Court eight times.

Initially, the Florida Bar wanted to ban all personal injury soliciting. But the state Supreme Court said that was too extreme and suggested the waiting period. (Another rule that prohibits face-to-face or phone solicitations is not being challenged in this case.)

"The (advertising) rule was drafted after we got sufficient information to suggest that legal advertising, specifically from personal injury lawyers, was adversely affecting the administration of justice," said former Florida Bar president Ben Hill, who was chairman of the commission that drafted the advertising rules.

In other words, the Bar determined that people didn't like legal advertising. It was tarnishing the profession's image.

So the rule was written and, within months, challenged.

U.S. Magistrate Charles R. Wilson, now U.S. attorney for the Middle District of Florida, recommended for the Bar. But last year U.S. District Judge Elizabeth Kovachevich sided with the advertisers. That decision was upheld by the 11th U.S. Circuit Court of Appeals. Then the U.S. high court agreed to hear the case.

Written arguments are due in the next two months. Lawyers will argue before the justices in January. A decision should be released by July.

By taking the case, the Supreme Court essentially is revisiting lawyer advertising, which it ruled was constitutional in the 1977 case Bates v. State of Arizona.

Speculating on what the court will do is always a dicey proposition. But there is some evidence that the justices will decide in favor of the Florida Bar. Four of the nine justices have written or joined opinions against lawyer advertising.

If the justices side with the Bar rule, bar associations around the country may copy Florida, leading to more restrictions on lawyer advertising.

If the justices find in favor of the lawyers who want to advertise, the Florida rule will be struck down and we may see a flood of mail solicitations to potential personal injury clients.

Either way, the image of lawyers is on the line again.

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