The opinion of the court was delivered by: Moran, District Judge.
This case raises the question whether the Illinois Attorney
Registration and Disciplinary Commission (Commission) can
constitutionally prohibit a lawyer from advertising through the
mail to a targeted audience. Plaintiffs are all practicing
attorneys who have done or plan to do direct mail advertising.
They seek injunctive and declaratory relief. Before the court at
this time is their motion for preliminary injunction.
On April 6, 1984, the Illinois Supreme Court amended
Disciplinary Rule 2-103 of the Code of Professional
Responsibility to read, in relevant part:
(b) A lawyer may initiate contact with a prospective
client in the following circumstances:
(2) by written communication distributed generally
to persons not known in a specific matter to
require such legal services as the lawyer offers to
provide but who in general might find such services
to be useful and providing that such letters and
circulars and the envelopes containing them are
plainly labeled advertising material;
The amended rule became effective May 1, 1984.
Plaintiffs Adams, Korrub, Holstein and McKenzie filed this suit
on April 25, 1984, challenging the part of Rule 2-103(b)(2) which
prohibits direct mail advertising by a lawyer to persons known to
require such specific legal services as that lawyer offers to
provide.*fn1 They specifically did not challenge any other part
of the amended rule.
Each attorney devotes much of his practice to certain specific
legal problems and periodically sends out mailings to those whom
he thinks are in need of his services with respect to those
problems. Typically, the list for these mailings comes from an
agency responsible for keeping track of those with such a
problem. For example, Kaplan is a bankruptcy lawyer and he
receives lists of debtors against whom a judgment has been
entered from Circuit Court.
The court granted plaintiffs a temporary restraining order on
April 26, 1984. In June 1984 defendant Commission filed a
complaint in the Supreme Court of Illinois for declaratory
judgment on whether the amended rule is constitutional.
Plaintiffs (defendants in the state court action) promptly
removed the case to this court. By that time the court was aware
that the United States Supreme Court had before it a case
involving somewhat similar issues, Philip Q. Zauderer v. Office
of Disciplinary Counsel of the Supreme Court of Ohio, ___ U.S.
___, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985). The court delayed
proceedings until decision in that case. The opinion in that case
issued on May 28, 1985, and this court now grants plaintiffs a
preliminary injunction for the following reasons.
Recognizing the importance of information in a free market
economy, the Supreme Court in Virginia Pharmacy Board v. Virginia
Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346
(1975), extended limited First Amendment protection to commercial
speed. A year later, in Bates v. State Bar of Arizona,
433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1976), the Court addressed
the issue of lawyer advertising. In that case the state
prohibited a lawyer from using newspapers to advertise his prices
for "routine" legal services. The Court rejected the state's
arguments that price advertising has an adverse effect on
lawyers' professionalism, is inherently misleading, stirs up
litigation, increases the cost of legal services, encourages
shoddy work and is so difficult to regulate that an absolute
prohibition is necessary. The Court also indicated that
advertising can be restrained if it is inherently likely to
deceive, or is false, deceptive or misleading in fact. The Court
held that these problems are not present in newspaper advertising
of prices for "routine" legal services.
The Court addressed the First Amendment concerns of lawyers who
solicit business through in-person communication with prospective
clients in Ohralik v. Ohio State Bar Association, 436 U.S. 447,
98 S.Ct. 1912, 56 L.Ed.2d 444 (1978). The case involved an
attorney who met with two accident victims, one at the hospital
where she was in traction and the other at her home the day she
was released from the hospital. The attorney had not been invited
by either victim. At these meetings the victims orally agreed to
let him represent them, but they later decided against filing
suit. The Court held that a prophylactic rule against such
in-person solicitation was not ...