Supreme Court Upholds Lawyer Solicitation Curbs : Law: Justices scale back a freedom granted to attorneys 18 years ago. Ruling allows restrictions on letters to families of accident victims.

The Supreme Court changed direction on the issue of advertising by lawyers Wednesday, ruling that states can restrain aggressive attorneys from sending solicitation letters to families of accident victims for at least 30 days.

The court ruled, 5 to 4, that Florida officials are empowered to protect grieving persons from “conduct that is universally regarded as deplorable and beneath common decency.”

The decision marks an abrupt shift from the court’s position in recent years. In 1977, the justices cleared the way for lawyers to appear in television ads and on billboards when they ruled for the first time that advertising by lawyers is free speech protected by the First Amendment.

But in recent years, as instances of overzealous advertising multiplied, several justices have expressed dismay at what the court had wrought.

“First Amendment protection, of course, is not absolute,” Justice Sandra Day O’Connor wrote for the majority in Wednesday’s decision. Solicitation letters are “pure commercial advertising [that deserves] a lesser degree of protection under the First Amendment.”

The new Florida regulation, the first of its kind in the nation, grew out of a state study of advertising and soliciting by lawyers. Personal injury lawyers there sent out 700,000 solicitation letters a year, 40% of which went to victims of accidents and their survivors.

The study included angry complaints from citizens. For instance, a parent whose child was hurt in an accident denounced a solicitation letter from a lawyer as the “rankest form of ambulance chasing.”

But critics, including the four dissenters on the high court, complained that the Florida rule sets a double standard that it is fundamentally unfair. The regulation applies to lawyers who contact a client by mail “for the purpose of obtaining professional employment.” It does not, however, restrict defense lawyers and insurance adjusters, who are free to contact accident victims to try to persuade them to accept a settlement.

“They [victims] are protected only from lawyers who want to represent them, not from lawyers who want to fleece them,” said David C. Vladeck of the Public Citizens Litigation Group, which filed a brief opposing the Florida regulation. “Most Americans don’t know much about legal services and, after an accident, it can be critically important to talk to a lawyer--to preserve evidence, to find witnesses, for example.”

In the past, the Supreme Court has made clear that states can forbid false or deceptive ads by lawyers. It also has prevented person-to-person solicitations. But as recently as 1990, the court said that the First Amendment protects a lawyer’s right to use targeted direct-mail advertising.

“I think this signals a moderate retreat,” said Pepperdine University Law Prof. Gregory L. Ogden, an expert in legal ethics. “I also think it will encourage other state bars to deal with the excesses of lawyer advertising.”

The California Bar does not have a similar 30-day ban on solicitation letters but its rules forbid communication with a “potential client who . . . is in such a physical, emotional or mental state that he or she would not be expected to exercise reasonable judgment.” A separate rule forbids lawyers to make contact with a person “at the scene of an accident or at or en route to a hospital, emergency care center or other health care facility.”

State bar regulations are usually enforced by a state’s supreme court and have the force of law. Violators can be punished through a variety of disciplinary measures, including disbarment.

As originally proposed, the Florida Bar rule would have forbidden all mail solicitations by lawyers that “relate to an accident or disaster,” but the state Supreme Court said that the restriction can last for only 30 days.

The owner of a Florida lawyer-referral service called Went for It Inc. challenged the restriction as unconstitutional and it was struck down last year by the federal appeals court in Atlanta.

Reversing that decision in the case before the court (Florida Bar vs. Went For It, 94-226), O’Connor said that the state “has a substantial interest both in protecting injured Floridians from invasive conduct by lawyers and in preventing the erosion of confidence in the profession.” She was joined by Chief Justice William H. Rehnquist and Justices Antonin Scalia, Clarence Thomas and Stephen M. Breyer.

In dissent, Justice Anthony M. Kennedy called the rule “censorship pure and simple.” A solicitation letter from a lawyer can provide a victim with useful information that, if nothing else, will show that there are many lawyers competing for his business, he said.

“Under the First Amendment the public, not the state, has the right and the power to decide what ideas and information are deserving of their adherence,” he said, joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.