Falanga v State Bar of Georgia

Robert FALANGA, Individually and Ronald F. Chalker, Individually,

Plaintiffs-Appellees, Cross-Appellants,

STATE BAR OF GEORGIA, Defendant-Appellant, Cross-Appellee.

Robert FALANGA, Individually; Ronald F. Chalker, Individually, et al.,

Plaintiffs-Appellants,

STATE BAR OF GEORGIA, Defendant-Appellee.

150 F.3^rd 1333 (11^th Cir. 1998)

The principal issue in this case is whether Georgia's prohibiting lawyers and their agents from soliciting professional employment from potential clients face-to-face and without invitation survives First Amendment commercial speech scrutiny as applied to appellees/cross-appellants. We conclude that it does, affirming in part and reversing in part the judgment of the district court.

I. BACKGROUND

Appellees/cross-appellants Robert Falanga and Ronald Chalker, who are licensed to practice law in and members of the State Bar of Georgia, primarily represent plaintiffs pursuing personal injury and wrongful death claims arising out of automobile accidents. Falanga and Chalker serve as the only lawyers in their five-office law firm headquartered in Atlanta. Most of their clients are poor and uneducated. Falanga and Chalker retain new clients through in-person, telephone and direct mail solicitation. They obtain the names of potential clients in two principal ways. First, the law firm's “public relations” agent asks doctors and chiropractors to recommend Falanga and Chalker to injured patients and grieving family members in need of legal services. In return, Falanga and Chalker treat the doctors and chiropractors to lunch and provide free legal advice. Additionally, law firm employees sift through police reports at the Department of Safety. With this information, Falanga and Chalker mail approximately 300 letters and brochures per week to accident victims.

In June 1992, upon receiving a sworn grievance from a chiropractor, the State Bar of Georgia began investigating Falanga and Chalker for breaches of several professional conduct standards. To stop disciplinary proceedings, Falanga and Chalker filed a complaint in the United States District Court for the Northern District of Georgia. Pursuant to 42 U.S.C. § 1983, Falanga and Chalker alleged, among other things, that enforcement of these standards would violate their commercial speech rights under the First Amendment, as incorporated through the Fourteenth Amendment.

II. DISCUSSION

In part A, we discuss whether prophylactic bans on lawyers' and their agents' in-person, uninvited solicitation are constitutional as applied to Falanga and Chalker. In part B, we address the constitutionality of the standards on lawyers' advertising.

All 50 states and the District of Columbia regulate lawyers' and their agents' in-person solicitation of professional employment. Georgia is no exception. It prohibits lawyers from engaging in in-person, uninvited solicitation. Similarly, lawyers may not solicit through an agent or pay for unregulated referrals. Finally, Georgia prohibits lawyers from retaining “strangers” to whom they or their agents have rendered unsolicited legal advice.

Professional responsibility rules on lawyer advertising usually concern purely commercial speech, as do Georgia's standards on in-person solicitation. See Shapero v. Kentucky Bar Ass'n, 486 U.S. 466, 472, 108 S.Ct. 1916, 100 L.Ed.2d 475 (1988) (“Lawyer advertising is in the category of constitutionally protected commercial speech.”). As such, in determining their constitutionality, courts apply the “now familiar” framework set forth in Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 566, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), and its progeny. Shapero, 486 U.S. at 472, 108 S.Ct. 1916. To justify a “regulation of lawyer solicitations for pecuniary gain[,]” the state must show that: (1) “it has a substantial interest in proscribing speech”; (2) “the regulation advances the asserted state interest in a direct and material way”; and (3) “the extent of the restriction is in reasonable proportion to the interest served.” Shapero, 486 U.S. at 472, 108 S.Ct. 1916;

Given these boundaries, the State Bar met its burden of proof as a matter of law. Both its general counsel and assistant general counsel provided anecdotal evidence, relaying the public's complaints about in-person, telephonic and direct mail solicitation. An accident victim herself testified about the intrusive nature of solicitation that Falanga himself initiated.

Additionally, the State Bar presented the results of an independently-conducted study. entitled “Consumer Reactions to Legal Services Advertising in the State of Georgia.” Overall, the highest percentage of respondents agreed with the proposition that “lawyers track down injured people and try to talk them into taking legal action.” Instead, according to the study, consumers “[o]verwhelmingly” prefer to choose a lawyer through methods that they control, that is, references from family, friends, co-workers, etc. From this information, the State Bar could reasonably infer that the majority of legal service consumers view in-person solicitation-whether through lawyers or their agents-as unduly intrusive, destructive to the court system and deserving of regulation.

[Additionally,] consensus supports the State Bar's view. The American Bar Association (ABA) opines that [t]here is a potential for abuse inherent in direct in-person or live telephone contact by a lawyer with a prospective client known to need legal services. No less than 31 states proscribe in-person solicitation in the same or similar manner.

In light of the foregoing, we hold that the district court erred in concluding that the State Bar failed to justify Georgia's restrictions on commercial speech… Unquestionably, the interests that the State Bar asserted are substantial, namely, protecting the public from vexatious conduct; preventing invasions of privacy and improving the public's confidence in the legal profession; promoting the independent judgment of lawyers; and prohibiting the unauthorized practice of law.

As we have discussed, the State Bar presented sufficient evidence as a matter of law to “demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.” Went For It, 515 U.S. at 626, 115 S.Ct. 2371

Finally, Georgia's prophylactic ban on in-person solicitation, whether the actor be a lawyer or a non-lawyer, stands in reasonable proportion to the interest served. The standards at issue are not over-inclusive as applied to the essential circumstances of this case, as “we do not see numerous and obvious less-burdensome alternatives [.]” Went For It, 515 U.S. at 633, 115 S.Ct. 2371 (internal quotation marks and citation omitted). Georgia does not prohibit lawyers from soliciting close friends, relatives or most clients. Further, they may seek professional employment from anyone who initiates the solicitation. Importantly, many other modes of advertising are available to lawyers. Accordingly, we hold the rules constitutional.

In its memorandum opinion following trial, the district court addressed the constitutionality of several other lawyer advertising standards that Falanga and Chalker challenged. In the first of these standards, Georgia prohibits lawyers from creating an “unjustified expectation” about a client's chances, and comparing their services with those of another lawyer in a way that they cannot factually substantiate. Next, Georgia requires lawyers to disclaim written solicitations as “Advertisements” patently on the envelope's face and at the top of each page. *1346 Finally, Georgia places restrictions on lawyers who wish to hold themselves out as “specialists.”

Falanga and Chalker cross-appeal these rulings, arguing that the standards impermissibly snare truthful speech, are over-inclusive, fail to target “real” harm, and/or arbitrarily restrict legitimate advertising. The State Bar defends the district court's judgment, pointing to anecdotes, the study and other evidence that it introduced at trial. Upon de novo review and due consideration, “[w]e agree with the district court's analysis and need go no further[.]” Wilson, 132 F.3d at 1430. Each of these standards directly and materially advance at least one substantial state interest in a reasonably proportionate and narrowly-drawn manner. See Went For It, 515 U.S. at 624, 115 S.Ct. 2371; Miller, 117 F.3d at 1382. Accordingly, we readily affirm the district court's judgment that Standards 5(a)(2), 5(a)(3), 6(b), 7(a), 8 and 18 are constitutional as applied to Falanga and Chalker.

III. CONCLUSION

In sum, we hold that Georgia's prohibiting lawyers and their agents from engaging in in-person, uninvited solicitation of professional employment does not violate the First Amendment commercial speech rights of Falanga, Chalker and other similarly situated lawyers who approach “unsophisticated, injured, or distressed lay person[s].”