United States District Court, Northern District of Illinois, E.D
August 15, 1985
ROBERT J. ADAMS, JR., LAWRENCE WILLIAM KORRUB AND TOM O'CONNELL HOLSTEIN AND ROBERT E. MCKENZIE, PLAINTIFFS,
ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION OF THE SUPREME COURT OF ILLINOIS, AND CARL H. ROLEWICK, ITS ADMINISTRATOR, DEFENDANTS.
The opinion of the court was delivered by: Moran, District Judge.
MEMORANDUM AND ORDER
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;
(e) . . . A copy of any written private communication
recommending or soliciting professional employment,
together with the name and address of each person to
whom the communication is sent,
shall be filed with the Attorney Registration and
Disciplinary Commission within thirty days after it
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 unconstitutional because of the
inherently injurious nature of such communication. 436 U.S. at
464-66, 98 S.Ct. at 1922-23.
The harm the Court found in this speech was that
[u]nlike a public advertisement, which simply
provides information and leaves the recipient free to
act upon it or not, in-person solicitation may exert
pressure and often demands an immediate response,
without providing an opportunity for comparison or
Id. at 457, 98 S.Ct. at 1919. The Court also found the state had
a strong interest in "maintaining standards among members of the
licensed professions," id. at 460, 98 S.Ct. at 1920, and in
"preventing those aspects of solicitation that involve fraud,
undue influence, intimidation, overreaching and other forms of
`vexatious conduct.'" Id. at 462, 98 S.Ct. at 1921. The Court was
careful to base its holding on the actual conduct involved in the
case, although it held that the state need not prove actual harm
when the circumstances present substantial dangers of harm. Id.
at 463-64, 98 S.Ct. at 1922. Ohralik is the only case to date in
which the Court has held that the state could ban a certain form
of lawyer advertising.
In In Re R.M.J., 455 U.S. 191, 102 S.Ct. 929, 71 L.Ed.2d 64
(1982), the Court considered regulation of lawyer print
advertising that restricted it to certain categories of
information and specified language, in some instances, and
restrained the mailing of announcement cards to lawyers, clients,
friends and relatives. The Court made clear that "regulation —
and imposition of discipline — are permissible where the
particular advertising is inherently likely to deceive or where
the record indicates that a particular form or method of
advertising has in fact been deceptive." Id. at 202, 102 S.Ct. at
937. The Court also stated:
Misleading advertising may be prohibited entirely.
But the States may not place an absolute prohibition
on certain types of potentially misleading
information, e.g., . . . a listing of areas of
practice, if the information also may be presented in
a way that is not deceptive. . . .
Even when a communication is not misleading, the
State retains some authority to regulate. But the
State must assert a substantial interest and the
interference with speech must be in proportion to the
interest served. Restrictions must be narrowly drawn,
and the State lawfully may regulate only to the
extent regulation furthers the State's substantial
Id. at 203, 102 S.Ct. at 937 (citations omitted). The Court found
the state's restrictions unsupported by substantial interests and
too broadly written. Regarding the rule on "announcement cards,"
the Court rejected the state's argument that general mailings
from lawyers should be prohibited because they are likely to
frighten the public, suggesting that the public's privacy
interest can be protected by requiring the lawyer to "stamp `This
is an advertisement' on the envelope." Id. at 206 n. 20, 102
S.Ct. at 939 n. 20. The Court recognized that "[m]ailings and
handbills may be more difficult to supervise than newspapers,"
id. at 206, 102 S.Ct. at 939, but suggested these difficulties
could be alleviated by requiring a lawyer to file with the state
a copy of all general mailings.
Most recently, the Supreme Court has dealt with lawyer
advertising in 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 advertising in that case
involved a line drawing of a Dalkon Shield, followed by words to
the effect that women who had been injured by the shield had
legal remedies and that plaintiff has experience in representing
such persons on a contingent fee basis that would result in no
fee if there was no recovery.
The Court found the phrase, "[i]f there is no recovery, no
legal fees are owed," to be misleading because the public is not
likely to know the difference between legal fees and other
litigation costs, and upheld state regulation in the form of
disclosure requirements relating to the terms of contingent fees.
The Court held that "an advertiser's rights are adequately
protected as long as disclosure requirements are reasonably
related to the State's interest in preventing
deception of consumers." Id. 105 S.Ct. at 2282. However, the rest
of the advertisement passed constitutional muster because it was
not inherently misleading and the state could not articulate a
substantial governmental interest in prohibiting such
advertising. The state argued that such advertising was akin to
in-person solicitation and encouraged meritless litigation. The
Court rejected both arguments. To the first it replied:
Print advertising may convey information and ideas
more or less effectively, but in most cases, it will
lack the coercive force of the personal presence of a
trained advocate. In addition, a printed
advertisement, unlike a personal encounter initiated
by an attorney, is not likely to involve pressure on
the potential client for an immediate yes-or-no
answer to the offer of representation. Thus, a
printed advertisement is a means of conveying
information about legal services that is more
conducive to reflection and the exercise of choice on
the part of the consumer than is personal
solicitation by an attorney.
Id. at 2277. To the second argument it replied, "the State is not
entitled to prejudge the merits of its citizens' claims by
choking off access to information that may be useful to its
citizens in deciding whether to press those claims in court." Id.
at 2279 n. 12. Thus, the Court held, "[a]n attorney may not be
disciplined for soliciting legal business through printed
advertising containing truthful and nondeceptive information and
advice regarding the legal rights of potential clients." Id. at
While the Supreme Court has not addressed lawyers' use of
direct mail advertising to targeted audiences, various lower
courts have applied the principles developed above to decide such
cases. See Matter of Von Wiegen, 101 A.D.2d 627, 474 N.Y.S.2d
147, modified 63 N.Y.2d 163, 481 N.Y.S.2d 40, 470 N.E.2d 838
(1984), cert. denied, ___ U.S. ___, 105 S.Ct. 2701, 86 L.Ed.2d
717 (1985). Spencer, III v. Honorable Justices of the Supreme
Court of Pennsylvania, 579 F. Supp. 880 (E.D.Pa. 1984); Bishop v.
Committee on Professional Ethics and Conduct of the Iowa State
Bar Association, 521 F. Supp. 1219 (S.D.Ia. 1981), vacated and
remanded on other grounds, 686 F.2d 1278 (8th Cir. 1982); Koffler
v. Joint Bar Association, 51 N.Y.2d 140, 432 N.Y.S.2d 872,
412 N.E.2d 927 (1980); Kentucky Bar Association v. Stuart,
568 S.W.2d 933 (Ky. 1978). The mailings involved in these cases ranged from
a letter on law firm stationery sent to two real estate agencies,
to a letter sent to the 250 victims of the Hyatt "sky-walk"
accident. In no case did the court find that the state's interest
in regulating commercial speech justified an outright prohibition
of direct mail advertising. These cases are discussed in more
In Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691,
53 L.Ed.2d 810 (1977) the Court held that First Amendment
overbreath doctrine does not apply to the professional
advertising context. Therefore, plaintiffs cannot rest their
challenge on the regulation's potential to chill speech but
rather must show that their specific conduct or speech is
protected. On the other hand, as Justice Brennan pointed out in
his concurrence in Zauderer, the state may not rely on "highly
speculative" or "tenuous arguments," and in the case where the
speech is not inherently misleading "must muster record evidence
showing that `a particular form or method of advertising has in
fact been deceptive.'" 105 S.Ct. at 2286.
Defendants' arguments rest primarily on the theory that there
is a substantive difference between solicitation and advertising.
The Committee Comments to amended Rule 2-103 illuminate this
Solicitation, as distinguished from advertising,
connotes a "private" communication targeted at a
person or category of persons known by the lawyer to
have an immediate potential need for legal services.
Rule 2-103(a) accordingly prohibits such
solicitations, while Rule 2-103(b)(2) permits general
which are not directed to persons known to require
legal services with respect to a specific matter or
Having made the distinction, the Commission places plaintiffs'
letters in the solicitation category and relies on Ohralik to
argue that this type of solicitation is not protected by the
Even if this court were to agree that a "private communication"
distinguishes advertising from soliciting, mail and in-person
solicitation cannot be so swiftly equated. The Supreme Court in
Zauderer implicitly distinguished between "print advertising" and
"the personal presence of a trained advocate." 105 S.Ct. at 2277.
The Court in In Re Von Weigen found unconstitutional a state ban
on mail solicitation of accident victims, basing its decision on
"the distinction between mail solicitation and in-person
solicitation. . . ." 63 N.Y.2d at 170, 481 N.Y.S.2d 40,
470 N.E.2d 838. The Court reasoned that the potential for
intimidation and pressure for an immediate response which so
disturbed the Court in Ohralik were not present in the case of
mail solicitation. See also Spencer v. Honorable Justices of
Supreme Court of Pennsylvania, 579 F. Supp. 880, 889-90 (E.D.Pa.
1984) (attorney who was also a pilot wanted to send solicitation
letters to those in need of his special services); Kentucky Bar
Association v. Stuart, 568 S.W.2d 933 (Ky. 1978) (real estate
lawyer wanted to send letters to real estate brokerage firms).
The court agrees with the analysis in In Re Von Weigen,
Spencer, and Kentucky Bar Association. The substantial state
interests in protecting the public from an invasion of privacy,
and from overreaching and undue influence which justified a ban
on in-person solicitation upheld in Ohralik, are not inherently
present in mail advertising to a targeted audience.*fn2 Thus,
the state can only regulate to the extent reasonably necessary to
protect these interests, and the regulations must be narrowly
drawn. Rule 2-103(b)(2) requires that the mailings be plainly
identified as advertising, thus protecting the privacy of the
recipient in the sense that if he does not want to read lawyer
advertising he can simply dispose of the envelope with its
contents. The state's argument that people treat mail from
attorneys differently from other mail was implicitly rejected in
In Re R.M.J., 455 U.S. at 206 n. 20, 102 S.Ct. at 939 n. 20. The
state cannot limit the public's access to information on the
basis that some might find such a letter offensive and, as such,
an invasion of their privacy. See Bolger v. Youngs Drug Products
Corp., 463 U.S. 60, 103 S.Ct. 2875, 2883, 77 L.Ed.2d 469 (1983).
Similarly, an absolute ban on mailings cannot be justified by
the threat of undue influence and overreaching. A letter, even if
a "private communication," is a means of conveying information
that is "more conducive to reflection and the exercise of choice
on the part of the consumer than is personal solicitation by an
attorney." 105 S.Ct. at 2277. As the court in Spencer said:
Even if the state could identify specific situations
in which mail recipients were particularly
susceptible or vulnerable to the persuasive influence
contained in a lawyer's letter, an absolute
prohibition of direct mailings would not be
justified. Rather, direct mailings could be banned
only in those identified circumstances.
579 F. Supp. at 890.
However, defendants argue that Rule 2-103 takes into account
in Spencer by prohibiting only targeted mailings, and is thus
narrowly drawn to prevent misleading communication. The court
cannot see a principled reason for allowing direct mailing to the
public at large, but not to target audiences. If a person
confronting a mortgage foreclosure receives a solicitation letter
like the one sent by plaintiff Adams, his reaction to it will in
no way be affected by whether the rest of the world, or only
those facing foreclosures, also receive the letter. Thus, the
state's narrowly drawn rule cannot be premised on this theory.
Rather, the state must have assumed, when writing the rule, that
the content of the mailings would differ significantly if target
mailings were banned. However, because the content of even
targeted mailings can be and are regulated (see Rule 2-103(e)),
an absolute ban is not "reasonably related to the State's
interest in preventing deception of consumers." 105 S.Ct. at
2282. As the Court in Zauderer stated:
[g]iven the possibility of policing the [advertising]
on a case by case basis, the prophylactic approach
taken by [the State] cannot stand. . . .
105 S.Ct. at 2281.
The court does not deny the state's right to regulate
plaintiffs' advertising to ensure it is not misleading or
deceptive. See In Re R.J.M., 455 U.S. 191, 203, 102 S.Ct. 929,
937, 71 L.Ed.2d 64 (1982). The Commission might reasonably
question Holstein's use of the phrase, "[w]e guarantee you
quality representation," and Korrub's promise that once one has
filed under Chapter 13 creditors "cannot take money from your
paycheck. They cannot harass you." Any regulation of plaintiffs'
letters would have to be based on a finding that their content
was either inherently deceptive or misleading, or had that effect
in fact. See Zauderer, 105 S.Ct. at 2283 (discussion of the
phrase, "if there is no recovery no legal fees are owed by our
clients . . .").
The Commission, although it has introduced many exhibits of
letters lawyers have sent to targeted audiences, has not made any
arguments regarding the misleading or deceptive nature of the
language contained in the letters. Rather, it has submitted the
complaints regarding these letters it received. Most of the
complaints were from attorneys representing the recipients of
these letters. In the instances where the recipient complained to
the Commission, it was mostly to say that the letter generated
confusion as to the status of his or her case, or the nature of
his or her problem. More than a showing that some people were
hassled by these letters is, however, necessary to sustain a
Plaintiffs seek a preliminary injunction. Ordinarily this case
might be an appropriate one in which to apply Younger deference
to the state court. See Spencer, 579 F. Supp. at 892. However, the
court in the initial stages of the case asked the Commission to
invite the Committee to reconsider the amended rule, thus
providing a means by which the Illinois Supreme Court could
further review the rule. The Committee refused to reconsider so
the Commission brought an action in the Illinois Supreme Court.
That case was removed to this court and we determined that it
could not be remanded, 600 F. Supp. 390 (N.D.Ill., 1984). This
court refused to abstain under those circumstances, and it sees
no reason to abstain now. See People of the State of Illinois v.
General Electric Co., 683 F.2d 206 (7th Cir. 1982), cert. denied,
461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983).
Plaintiffs have met all the requirements for a preliminary
injunction. See Citizens Energy Coalition of Indiana v. Sendak,
594 F.2d 1158, 1162-63 (7th Cir. 1979), cert. denied,
444 U.S. 842, 100 S.Ct. 83, 62 L.Ed.2d 54 (1979). They are faced with a
threat of prosecution by defendants, with a harm to their
professional standing and reputation which cannot be remedied by
money damages, and with a harm that outweighs the harm to
defendants of being prevented from enforcing their rule. As the
analysis above indicates, the plaintiffs
also have a strong likelihood of success on the merits.
Given the court's duty to decide the issues involved in this
case, and the plaintiffs' showing that a preliminary injunction
is the appropriate relief, plaintiffs' motion for preliminary
injunction against enforcement of the rule in its present form is