Shapero continued a trend, as the Supreme Court struck down a Kentucky bar rule that prohibited targeted direct mail advertising (in this case, such mailings were directed at homeowners in danger of foreclosure). The court found that when it comes to solicitation:
“the relevant inquiry is not whether there exist potential clients whose “condition” makes them susceptible to undue influence, but whether the mode of communication poses a serious danger that lawyers will exploit any such susceptibility.” 1
The discussion of the differences between forms of solicitation is illuminating:
“Neither mode of written communication involves “the coercive force of the personal presence of a trained advocate” or the “pressure on the potential client for an immediate yes-or-no answer to the offer of representation.” Unlike the potential client with a badgering advocate breathing down his neck, the recipient of a letter and the “reader of an advertisement . . . can `effectively avoid further bombardment of [his] sensibilities simply by averting [his] eyes,’ ” Ohralik, supra, at 465, n. 25 (quoting Cohen v. California, 403 U. S. 15, 21 (1971)). A letter, like a printed advertisement (but unlike a lawyer), can readily be put in a drawer to be considered later, ignored, or discarded. In short, both types of written solicitation “conve[y] information about legal services [by means] that [are] more conducive to reflection and the exercise of choice on the part of the consumer than is personal solicitation by an attorney.” 2
Justice Sandra Day O’Connor, in dissent, lamented that professional advertising was being subjected to the same rules as other forms of commercial speech.
Takeaway: Shapero was the fourth Supreme Court case is a row to cut back attorney advertising regulation. It also provides a good basis for understanding what makes a particular form of solicitation potentially coercive – and that’s important guidance to have in mind as new forms of “real time electronic” solicitation emerge.