Solicitation by Lawyers: Piercing the First Amendment Veil

Authors

Louise L. Hill

Abstract

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, in the form of specific rules prohibiting its members from engaging in certain forms of conduct. In recent years, the United States Supreme Court has considered various rules that restrict the commercial speech of lawyers. Reviewing these proscriptive rules, the Court struck down categorical bans on lawyer advertising and targeted, direct mail solicitation as violative of the first amendment. Because the free flow of information to the public is the primary justification for protecting commercial speech, 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. 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 proscriptions 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.

First Page

369

Recommended Citation

Louise L. Hill, Solicitation by Lawyers: Piercing the First Amendment Veil, 42 Me. L. Rev. 369 (1990).
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol42/iss2/8