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Adams v. Attorney Registration and Disciplinary Commission of

decided: September 18, 1986.

ROBERT J. ADAMS, JR., ET AL., PLAINTIFFS-APPELLEES,
v.
ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION OF THE SUPREME COURT OF ILLINOIS, AND CARL R. ROLEWICK, DEFENDANTS-APPELLANTS



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 84 C 3548, 84 C 4771, 84 C 5179 & 84 C 5711 James B. Moran, Judge.

Author: Cudahy

Before CUDAHY and FLAUM, Circuit Judges, and CAMPBELL, Senior District Judge.*fn*

CUDAHY, Circuit Judge.

Plaintiffs-Appellees are attorneys practicing in the State of Illinois. They all rely on targeted direct mail advertising to reach potential clients. Defendants-Appellants, the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois (the "ARDC" or the "Commission") and its administrator, Carl R. Rolewick, promulgated a disciplinary rule which forbade targeted direct mailing. Plaintiffs sued under 42 U.S.C. § 1983 contending that the rule violated their first and fourteenth amendment rights. They sought a declaration that the rule was unconstitutional and an injunction prohibiting its enforcement. The District Court for the Northern District of Illinois granted plaintiffs' motion for a preliminary injunction. Defendants question the need for this extraordinary remedy and appeal.

Plaintiffs Robert J. Adams, Jr., Lawrence William Korrub, Tom O'Connell Holstein, Irwin Zalutsky, Donald Pinski and Melvin J. Kaplan all have practices specializing in consumer bankruptcy. Each attorney sends direct mailings to individuals with particular debt problems. For example, Adams sends letters to persons who are named defendants in resident mortgage foreclosure proceedings advising the recipient to "Save Your Home" and including a pamphlet which suggests the retention of Adams' law firm to help initiate Chapter 7 or Chapter 13 proceedings. Plaintiffs' First Amended Complaint, Exhibit C-1. Korrub sends letters to individuals subject to garnishment proceedings that encourage the recipient to "protect your paycheck" by initiating Chapter 13 proceedings. The recipient is invited to call Korrub for a "free consultation." Plaintiffs' First Amended Complaint, Exhibit B.

Plaintiff Robert E. McKenzie concentrates his practice on representing individuals and businesses before the Internal Revenue Service's Collection Division. He sends mailings to individuals in Cook and Du Page counties who have federal tax liens filed against them offering his services as a former IRS officer to help combat "The Arrogant Internal Revenue service." Plaintiffs' First Amended Complaint, Exhibit B-1. Intervenor Daniel Starr sent solicitation letters to victims of a Chicago Transit Authority train collision.

On April 6, 1984, the Supreme Court of Illinois adopted an amendment of Disciplinary Rule ("D.R.") 2-103 of the Illinois Code of Professional Responsibility. The amendment was to take effect May 1, 1984. The challenged portion of the amendment reads:

(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 as advertising material.

D.R. 2-103(b)(2).

On April 25, 1984, plaintiffs Adams, Korrub and Holstein filed suit under 42 U.S.C. § 1983 alleging that the disciplinary rule is unconstitutional because it impinges upon their first amendment right to freedom of speech and their fourteenth amendment rights to due process and the equal protection of the laws. Plaintiffs also sought an injunction barring the ARDC from enforcing the disciplinary rule against them, claiming that the rule prohibited their advertising program and thereby caused them professional and financial detriment for which no adequate remedy existed at law. On April 25, 1984, plaintiffs moved for a temporary restraining order staying the enforcement of the rule, which was granted in part.*fn1

McKenzie was added as a plaintiff in May 1984. In June 1984, suits filed by Zalutsky, Pinski and Kaplan against the ARDC were consolidated with the Adams suit.

In June 1984, the Commission filed a complaint in the Supreme Court of Illinois for a declaratory judgment on whether the amended disciplinary rule is constitutional. Plaintiffs, defendants in the state court action, removed the case to federal court and defendants' motion to remand the case back to the state court was denied.*fn2 In March 1985, Daniel Starr was given leave to intervene in the Adams suit. The district court then stayed determination of plaintiffs' motion for a preliminary injunction until the Supreme Court decided Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 105 S. Ct. 2265, 85 L. Ed. 2d 652 (1985), a case involving attorney advertising. That Supreme Court ruling was issued on May 28, 1985.

In August 1985, the district court granted plaintiffs' motion for an injunction stating:

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.), 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 ...


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