# In the Matter of Amendment to Sjc Rule 3: 07 > Massachusetts Supreme Judicial Court · July 16, 1986 · 398 Mass. 73 URL: https://www.frixlaw.com/law-library/cases/9517642 ## Case - **Full name:** In the Matter of Amendment to S.J.C. Rule 3:07, DR 2-103 and DR 2-104 - **Court:** Massachusetts Supreme Judicial Court - **Decided:** July 16, 1986 - **Citations:** 398 Mass. 73; 495 N.E.2d 282; 1986 Mass. LEXIS 1412 - **Precedential status:** Published - **Opinion:** Concurrence by Hennessey - **Judges:** Hennessey, Wilkins, Liacos, Abrams, Nolan, Lynch, O'Connor - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9517642 ## Opinion text Hennessey, C.J. (with whom Abrams, J., joins). I concur with the result reached by the court, in so far as it permits a lawyer to solicit prospective clients through written communications. However, I would adopt the entire proposal of the special committee appointed by this court, and allow direct, in-person solicitation of friends, relatives, former clients, and businesses. I believe that such a rule is required by the First Amendment. Although the Supreme Court has addressed these matters in only a few cases, the First Amendment principles governing our decision are clear. 1 Truthful and nondeceptive commercial speech may be restricted only in the service of a substantial government interest, and only through means that directly advance that interest. Zauderer v. Office of Disciplinary Counsel of the Supreme Court, 471 U.S. 626, 637-638 (1985). Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557, 563 (1980). A State is not free to weigh the potential burdens of commercial speech against its perceived benefits. Rather, the State must identify the substantial interests which it *89 seeks to advance through its regulation of lawyer solicitation, and then formulate its restrictions in a manner no more extensive than reasonably necessary to further these ends. See In re R.M.J., 455 U.S. 191, 207 (1982). Under the rule now adopted, indirect solicitation, such as by mail, leaflets, or electronic communication, is generally permissible subject only to the requirements that it be labeled “advertising” and a copy of the communication be retained by the lawyer for two years. All solicitation that is coercive, harassing, or deceptive is prohibited, as is solicitation where the prospective client has made known to the lawyer his desire not to be solicited, or where the prospective client is in such a physical, mental, or emotional state that he cannot exercise reasonable judgment in employing a lawyer. These changes accord with our special committee’s recommendations, and I agree that they are constitutionally justified by substantial State interests in preventing deception or coercion of prospective clients. However, this court also states that all in-person solicitation of employment for a fee, whether by telephone or direct personal communication, is prohibited. I think that the First Amendment precludes such a broad prohibition. As a general proposition, in-person solicitation may be precluded by the State because such direct confrontation by a lawyer may override the judgment of the prospective client. However, as pointed out by our special committee, these dangers simply do not apply to the in-person solicitation of friends, relatives, former clients, and businesses. In my opinion, there is no substantial State interest which warrants a blanket prohibition of all in-person solicitation. The court’s opinion indicates that considerations of “professionalism” warrant this prophylactic rule. I disagree. The Supreme Court has said that the belief that lawyers are somehow “above” trade has become an anachronism. Bates v. State Bar, 433 U.S. 350 , 371-372 (1977). In its most recent pronouncement on this subject, a majority of the Supreme Court stated that “although the State undoubtedly has a substantial interest in ensuring that its attorneys behave with dignity and decorum *90 in the courtroom, we are unsure that the State’s desire that attorneys maintain their dignity in their communications with the public is an interest substantial enough to justify the abridgement of their First Amendment rights. Even if that were the case, we are unpersuaded that undignified behavior would tend to recur so often as to warrant a prophylactic rule” (emphasis added). Zauderer, supra at 647-648 . The court indicates that an all-inclusive prohibition of in-person solicitation is warranted by the difficulties posed in defining and enforcing a less rigid rule. The mere fact that the word “friend” is “impossible” to define with precision 2 does not constitute a substantial State interest which justifies an infringement on First Amendment rights. The Supreme Court has repeatedly held that restrictions on commercial speech must be narrowly crafted, see Zauderer, supra at 644 , and a prophylactic rule barring truthful, noncoercive, in-person solicitation is patently suspect. See In re R.M.J., supra at 203. Where First Amendment rights are at stake, the difficulty of drawing lines between protected and unprotected speech “is no reason for avoiding the undertaking.” In re Primus, 436 U.S. 412 , 438 n.32 (1978). See Bates, supra 383-384. The policy reasons which are offered for allowing in-person solicitation in limited circumstances closely parallel the First Amendment considerations. First, solicitation will serve to inform consumers about the availability, nature, and price of legal services. Such an exchange of commercial information, even if it furthers the purely economic interests of the speaker, will also provide the listener with important information, without which he might be unable to vindicate or protect his legal rights. Second, truthful and noncoercive solicitation may result in a more favorable distribuiton of legal services, to the extent that certain sectors of the consuming public are chronically underinformed about their legal needs and the availability of *91 legal representation. See Federal Trade Commission Staff Report, Improving Consumer Access to Legal Services: The Case for Removing Restrictions on Truthful Advertising 8-16 (1984). See also S.J.C. Rule 3:07, Canon 2, as appearing in 382 Mass. 770 (1981) (lawyers shall “Assist the Legal Profession in Fulfilling Its Duty to Make Legal Counsel Available”). Third, I am not unmindful of the disparate impact which non-solicitation rules may have on the providers as well as the consumers of legal services. Ohralik v. Ohio State Bar Ass’n, 436 U. S. 447,475 (Marshall, J., concurring). Some proponents of our special committee’s recommendations contend that non-solicitation rules discriminate against those practitioners (including women and members of minorities) who are most in need of overt solicitation of business in order to become established in the profession. Finally, I concur in this court’s expressed concern for dignity and professionalism among lawyers. But the rules of court are limited by constitutional considerations and by the legitimate arguments of consumerism. The rules speak only to “must” and “must not,” and to bar discipline. I think there is among lawyers a consensus or near consensus that speaks to the ideals rather than the personal rights of the lawyer. Those ideals can best be advanced, not by rules of court, but by example and by collegial persuasion. Wilkins, J. I agree with the rule amendment as far as it goes. I would have gone further and approved the additional changes advanced by the committee and favored by the Chief Justice. I rather suspect the Chief Justice is correct in his analysis of where First Amendment rights will go in this area. I do not rely, however, on the anticipated limits of future First Amendment decisions, nor do I rely on any requirements of the Massachusetts Declaration of Rights, except that any rule should reasonably avoid constitutional shoals, particularly those only vaguely charted. In my view, as a matter of policy, the rules of this court should allow conduct permissible under the committee’s proposal. *92 Abrams, J. I join in the Chief Justice’s opinion. I add only that the absolute bar against in-person solicitation may have a particular adverse impact on women and members of minorities, both as consumers and as suppliers of legal services. Historically, these groups have had only limited access to the preestablished networks that, for traditional male lawyers, have been sources of client referrals, and, for clients, sources of information about the availability and quality of legal services. Overly restrictive solicitation rules may hinder the professional development of women and members of minorities as lawyers, and may obstruct the flow of information about legal problems and remedies to those consumer groups most in need of legal assistance. See Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 474-475 (1978) (Marshall, J., concurring). Because of this potentially discriminatory aspect, I believe it inappropriate on policy grounds as well as constitutional grounds not to adopt the broad rule proposed by the committee. Even if there were no discriminatory aspect to the rule announced today, the committee’s proposal is correct as a matter of policy. See opinion of Wilkins, J., ante. believe that this court, in reaching a conclusion on the First Amendment issues which differs from mine, has relied on excerpts from Supreme Court opinions which do not express the controlling constitutional principles as conveyed by all that the Supreme Court has said upon these matters. If allowing in-person solicitation of “friends” poses enforcement problems, it is obvious that a role prohibiting- an attorney from discussing potential legal representation with friends, relatives, or former clients poses similar, if not greater, difficulties. It is impractical to formulate a rule which in all probability is consistently disregarded. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9517642. Public record. Not legal advice.