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ADAMS v. ATTY. REGIS. & DISCIPLINARY COM'N

August 15, 1985

ROBERT J. ADAMS, JR., LAWRENCE WILLIAM KORRUB AND TOM O'CONNELL HOLSTEIN AND ROBERT E. MCKENZIE, PLAINTIFFS,
v.
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.

Facts

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
  is sent.

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.

Governing Law

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 ...


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