SHAPERO v. KENTUCKY BAR ASSOCIATION

Legal Principle at Issue

Does the First Amendment's protection of commercial speech prohibit a Kentucky rule banning attorneys from sending truthful, non-deceptive, targeted direct-mail advertisements to potential clients known have specific legal problems?

Action

Reversed and remanded. Petitioning party received a favorable disposition.

Facts/Syllabus

Petitioner, a member of the Kentucky Bar, applied to that State's Attorneys Advertising Commission for approval of a letter that he proposed to send "to potential clients who have had a foreclosure suit filed against them," which advised the client that "you may be about to lose your home," that federal law "may allow you to . . . ORDE[R] your creditor to STOP," that "you may call my office . . . for FREE information," and that it "may surprise you what I may be able to do for you." Although the Commission did not find the letter false or misleading, it declined to approve it on the ground that a then-existing Kentucky Supreme Court Rule prohibited the mailing or delivery of written advertisements "precipitated by a specific event . . . involving or relating to the addressee . . . as distinct from the general public." 

Nevertheless, the Commission registered its view that the Rule violated the First Amendment under Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio (1985), and recommended its amendment by the Kentucky Supreme Court. Petitioner then sought an advisory opinion as to the Rule's validity from the State Bar Association's Ethics Committee, which upheld the Rule as consistent with Rule 7.3 of the American Bar Association's Model Rules of Professional Conduct. On review of the advisory opinion, the Kentucky Supreme Court held that Zauderer compelled the State Rule's deletion, and replaced it with Rule 7.3, which also prohibits targeted, direct-mail solicitation by lawyers for pecuniary gain, without a particularized finding that the solicitation is false or misleading. The court did not specify either the precise infirmity in the State Rule, or how Rule 7.3 cured it.