Lawyer advertising spurs State Bar survey plan

Hoosiers will soon be asked whether "ambulance chasing" attorneys should have to wait 30 days after an accident or injury before directly contacting potential clients by mail.

The Indiana State Bar Association plans to find out what residents think about a month-long cooling-off period where lawyers wouldn't be able to advertise their services by direct mail.

At its annual meeting, the bar association's Board of Governors gave approval Oct. 1 for a survey of Indiana residents about a proposed lawyer advertising rule that was submitted to the Indiana Supreme Court two years ago.

That measure includes changes to Section 7 of the Rules of Professional Conduct regarding advertising. Specifically, Rule 7.3(b)(3) wouldn't allow an attorney to advertise directly to a person or their family within a month of any accident or disaster for a personal injury or wrongful death action.

"There is potential for abuse inherent in direct solicitation by a lawyer of prospective clients known to need legal services," the proposed rule commentary says, noting how the public can be overwhelmed after an accident and not able to make a reasoned decision. "The situation is therefore fraught with the possibility of undue influence, intimidation, and overreaching. This potential for abuse … justifies the 30-day restriction, particularly since lawyer advertising permitted under these rules offers an alternative means of communicating necessary information to those who may be in need of legal services."

The Rules Committee is still reviewing and considering the request, according to Indiana Supreme Court spokeswoman Kathryn Dolan.

But before a final decision is considered, the ISBA wants the court committee and justices who'd review the issue to have more empirical data from the audience receiving attorney advertising, according to ISBA immediate past-president Doug Church, who watched this issue grow during his term. The survey is intended to follow a 1995 ruling from the United States Supreme Court that determined specific guidelines for adopting these types of rules.

In Florida Bar v. Went for It Inc., 515 U.S. 618 (1995), the court upheld the state's restriction on lawyer advertising under the First Amendment's commercial speech doctrine – the first time justices had done so since the landmark Bates v. State Bar of Arizona, 433 U.S. 350 (1977), that lifted the traditional ban on lawyer advertising. Florida had adopted a rule in 1990 prohibiting attorneys from sending solicitation letters to injury victims or their relatives until after 30 days had elapsed. One attorney who'd regularly done so challenged the rule on grounds it violated his constitutional free-speech rights.

The court held that Florida's regulation was permissible and states could adopt those rules as long as the particular jurisdiction satisfied a three-prong test: that the government asserts a substantial interest in supporting the regulation; that it can demonstrate the restriction directly and materially advances the interest; and that the regulation is "narrowly drawn." Justices held the protection of potential client's privacy is a substantial interest; that a two-year study conducted on the effects of direct target mailings demonstrated the harms were real and this regulation would alleviate them to a degree; and that a 30-day cooling-off period was acceptably brief and didn't stop people from finding an attorney if they needed one.

Church said the ISBA committee studied several cases but focused on the one from Florida because it provides definitive guidelines.

Specifics haven't been outlined on how the study will be conducted, but it's expected to cost about $25,000 and a firm will likely be hired to survey residents in some fashion, he said. •