Shapero v. Kentucky Bar Assn.

Background

A Kentucky lawyer asked permission to mail a letter to people who had foreclosure suits filed against them offering free information and possible help. The Kentucky Advertising Commission and the Bar’s Ethics Committee found the letter truthful and not deceptive, but the Kentucky Supreme Court replaced the old rule with ABA Model Rule 7.3 and upheld a ban on sending targeted letters when the lawyer’s significant motive is making money. The lawyer challenged that blanket ban under the First Amendment.

Reasoning

The Supreme Court treated lawyer advertising as protected commercial speech. It relied on earlier decisions that distinguish written advertisements from in-person solicitation and held that a categorical ban on truthful, nondeceptive targeted letters is not justified. The Court said written mailings pose less danger of coercion than face-to-face approaches and that states can address specific abuses through narrower tools (for example, requiring filing, labeling, or proof of accuracy) rather than an absolute prohibition.

Real world impact

The Court reversed the Kentucky decision and sent the case back for further proceedings consistent with this opinion. Practically, lawyers who send truthful, nonmisleading letters to people known to have a legal problem are protected from blanket state bans, though states retain power to regulate deceptive or abusive practices and to impose reasonable safeguards.

Dissents or concurrances

A concurrence agreed with Parts I and II but urged deference to state courts on some issues. A dissent warned that targeted, personalized solicitations risk misleading vulnerable people and argued states should have broader authority to restrict such lawyer advertising to protect professional standards.