In re Koffler, 51 N.Y.2d 140 (1980)

Direct mail solicitation of potential clients by lawyers is constitutionally protected commercial speech that may be regulated, but not entirely prohibited.

Summary

Attorneys Koffler and Harrison were charged with violating New York Judiciary Law § 479 and DR 2-103(A) of the Code of Professional Responsibility for sending direct mail solicitations to homeowners and real estate brokers. The attorneys argued the statute and code violated their First Amendment rights. The New York Court of Appeals reversed the Appellate Division’s order, holding that a blanket prohibition on direct mail advertising of legal services is unconstitutional. While such advertising can be regulated to prevent deception, a complete ban is not permissible.

Facts

Koffler and Harrison mailed letters to approximately 7,500 property owners, soliciting their business for real estate transactions. They also sent letters to real estate brokers seeking referrals. The letters included a reproduction of a *Newsday* advertisement. Mr. Koffler testified that newspaper advertising yielded negligible results. The firm handled about 200 closings at the fee stated in the letter.

Procedural History

The Joint Bar Association Grievance Committee initiated disciplinary proceedings against Koffler and Harrison. The referee concluded that the attorneys violated the Judiciary Law and DR 2-103(A). The Appellate Division confirmed the referee’s report, finding the statute and DR 2-103(A) constitutional insofar as they ban solicitation of legal business by mail. The Court of Appeals granted the attorneys’ appeal as of right on constitutional grounds.

Issue(s)

1. Whether the prohibition against direct mail solicitation of potential clients by attorneys violates the First Amendment’s guarantee of free speech.

Holding

1. Yes, because a complete ban on direct mail advertising of the availability and cost of legal services is an unconstitutional restriction on commercial speech.

Court’s Reasoning

The court reasoned that direct mail solicitation is a form of commercial speech, and the Supreme Court has rejected the notion that “solicitation” falls entirely outside First Amendment protection. While not all solicitation is advertising, all advertising implicitly or explicitly involves solicitation. The court applied the four-part analysis from Central Hudson Gas & Electric Corp. v. Public Service Commission to determine the constitutionality of the restriction:

1. The letter was not misleading or related to unlawful activity.
2. The state’s interests in preventing deception, protecting privacy, avoiding overcommercialization, and preventing conflicts of interest are substantial.
3. A direct relationship exists between the regulation and the prevention of deception. The court stated, “That there is a substantial State interest to which the regulations are closely related does not end the inquiry, however, for complete suppression is not constitutional if the State’s interest can be adequately protected by more limited regulation.”
4. The court found a less restrictive alternative exists: a filing requirement for solicitation letters similar to the requirement for retainer statements.

The court distinguished direct mail from in-person solicitation, noting that recipients can simply discard unwanted mail. The court emphasized the importance of disseminating truthful price information to ensure informed decision-making, stating that, “the stream of commercial information [must] flow cleanly as well as freely”. The court found the state’s interests could be adequately protected through less restrictive means, such as filing requirements. Therefore, the complete ban was unconstitutional. The court considered whether the ban was a restriction on content or manner of communication, and found that, even under the manner restriction test, the alternatives were not “ample” and the regulation was not reasonable.