ban all advertising by lawyers, nor may it ban advertising
directed to a particular problem (e.g., a lawyer can
advertise, “If you’ve been injured by a Dalkon shield, I
may be able to help you.”)
In Shapero v. Kentucky Bar Ass’n, 486 U.S. 466
(1988), an attorney petitioned for review of advisory
opinion of State Bar Association’s Ethics Committee
regarding propriety of proposed direct mailing to
potential clients. Held: the state could not, consistent
with First and Fourteenth Amendments, categorically
prohibit lawyers from soliciting legal business for
pecuniary gain by sending truthful and nondeceptive
letters to potential clients known to face particular legal
problems.
Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978).
The states may ban certain types of in-person solicitation
by lawyers seeking clients (e.g., solicitation of accident
victims in person by tort lawyers who want to obtain a
contingent-fee agreement).
In Florida Bar v. Went For It, Inc., 515 U.S. 618
(1995), a lawyer and lawyer referral service challenged
constitutional validity of Florida Bar rules that
prohibited lawyers from using direct mail to solicit
personal injury or wrongful death clients within 30 days
of accident. Held: the restriction withstood First
Amendment scrutiny.
In Ibanez v. Florida Department of Business and
Professional Regulation, Board of Accountancy, 512 U.S.
136 (1994), an attorney was reprimanded by Board of
Accountancy for engaging in “false, deceptive, and
misleading” advertising by referring to her credentials as
Certified Public Accountant and Certified Financial
Planner in advertising for her law practice. The Supreme
Court reversed, holding that Board’s decision was
incompatible with First Amendment.
In Edenfield v. Fane, 507 U.S. 761 (1993), a certified
public accountant (CPA) challenged Florida ban on in-
person solicitation by CPAs. Held: the ban violated the
First Amendment as applied to CPA’s proposed
communication to potential clients of truthful,
nondeceptive information proposing lawful commercial
transaction.
In re Ravich, Koster, Tobin, Oleckna, Reitman &
Greenstein, 155 N.J. 357 (1998). Improper solicitation
of clients after gas line explosion at apartment complex
warranted reprimand.
In re Anis, 126 N.J. 448 (1992), cert. denied, 504
U.S. 956 (1992). Held: (1) Proscription against direct
solicitation of clients who are vulnerable and probably
not able to make reasoned judgment on their behalf can
be violated even without proof that attorney actually
knew of prospective client’s inability to make reasoned
judgment about retaining counsel following tragedy; (2)
commercial speech guarantees of First Amendment did
not protect solicitation of father of deceased airplane
passenger; and (3) public reprimand was warranted for
misleading solicitation of passenger’s father at time of
vulnerability.Hamilton Amusement Center, Inc. v. Verniero, 156
N.J. 254 (1998), cert. denied, 527 U.S. 1021 (1999),
affirmed the Appellate Division’s finding that N.J.S.A.
2C:34-7c, which controls sexually oriented businesses by
restricting signs and establishing a perimeter buffer, was
not vague and did not violate freedom of speech. The
statute regulates only commercial speech and is content-
neutral, thereby invoking an intermediate scrutiny of its
restrictions. Although the speech being regulated was
protected commercial speech, the statute directly
advanced substantial governmental interests in traffic
safety and the welfare of minors and was not more
extensive than necessary to serve these asserted interests.
Thus, N.J.S.A. 2C:34-7c does not violate freedom of
speech. The statute, too, was not facially vague, nor did
it violate equal protection as an impermissibly under-
inclusive law. The Legislature may correctly distinguish
between the speech and content of sexually-oriented
businesses and non-sexually-oriented businesses, and the
statute was not a prior restraint both because it did not
prohibit plaintiffs from expressing their message entirely
and because suit was brought before the government
enforced the statute. Simply put, plaintiffs are only
prohibited from expressing their message on signs larger
than those permitted.Town Tobacconist v. Kimmelman, 94 N.J. 85 (1983),
upheld the constitutionality of the Drug Paraphernalia
Act, N.J.S.A. 2A:21-46 to 53 (L. 1980, c. 133). One of
the particular objections to the law was that N.J.S.A.
24:21-49, which makes it a crime to place a printed
advertisement “knowing that the purpose of the
advertisement in whole or in part, is to promote the sale
of objects intended for use as drug paraphernalia,”
infringed upon their First Amendment right to engage in
commercial speech. The Court rejected plaintiff’s
contentions that the statute was vague and overbroad,
and violated plaintiff’s First Amendment rights. After
observing that the statute did not deal with “pure” non-
commercial speech, the Court noted that the