Attorneys have been reluctant to take part in advertising and solicitation since the United States Supreme Court specifically allowed their use sixteen years ago. Of those attorneys who have advertised or solicited, most have used the traditional forms of advertising such as television, radio, and print media. Attorneys have been particularly averse to direct-mail solicitation, which may be the most effective form of advertisement. Prior to 1988, the scarcity of attorney solicitation could be explained by the unsettled nature of the governing law. In that year, however, the Supreme Court finally clarified the law regarding targeted, direct mail solicitation by attorneys, or so it appeared. In Shapero v. Kentucky Bar Ass'n, the Supreme Court held that a state may not "categorically prohibit" targeted, direct-mail solicitation by lawyers. Over the last two years, state courts have begun to erode the constitutional protection afforded targeted, direct-mail solicitation in Shapero. In particular, three state supreme courts have held that targeted, direct-mail solicitation of victims or their families immediately after an accident does not deserve First Amendment protection. In their zeal to punish what they perceive as distasteful conduct, these state courts have essentially ignored the plain meaning of Shapero and have instead concluded that the vulnerability of certain potential clients justifies a partial ban on targeted, direct-mail solicitation. Disturbingly, those who oppose granting First Amendment protection to direct-mail solicitation are beginning to rely upon these cases for precedent. If this trend continues, the First Amendment protection that the Shapero Court intended to grant to targeted, direct-mail solicitation by attorneys will vanish. Section II of this Article explores the impact that the First Amendment has had on the history of attorney advertising and solicitation, with particular emphasis on its impact on direct-mail solicitation. Section III analyzes the state court decisions that have limited this First Amendment protection. Finally, Section IV of this Article explains why these state court decisions are inconsistent with Shapero and therefore should not be followed.
25 Loy. U. Chi. L.J. 1 (1993)