Some years ago, this firm and Frank Beltran of Beltran & Associates, produced a paper that discussed the improper use of "runners," (non-lawyers who solicit business for money or remuneration) by trial attorneys in Georgia. In that paper we asserted that the use of "runners," would lead to the disbarment of any trial Georgia lawyer or firm who consistently employed "runners." Sadly, we were, apparently, wrong or overzealous in our interpretation of the Georgia State Bar Standards. In the recent disciplinary case, In the Matter of Robert A. Falanga, ___ Ga. ____, 533 S.E.2d 711, (2000WL960463(Ga.)), the Georgia Supreme Court accepted the recommendation of a public reprimand for the attorney involved and passed on the possibility of more stringent punishment – disbarment. To her credit, Honorable Justice Huntstein dissented. We agree with her dissent. More importantly, we believe the Supreme Court has muddied the waters concerning the enforceability of attorney discipline in the area of solicitation of clients.

The State Bar initially brought disciplinary charges against Mr. Falanga in 1992. Some years later, Mr. Falanga sued the State Bar in federal court asserting, generally, that he had a first amendment right (commercial speech) to discuss employment matters directly with prospective clients.

In framing the issues in the Falanga matter, the 11th Circuit Court of Appeals wrote:

The principal issue in this case is whether Georgia's prohibiting lawyers and their agents from soliciting professional employment from potential clients face-to-face and without invitation survives First Amendment commercial speech scrutiny as applied to appellees/cross-appellants. We conclude that it does

I. BACKGROUND

Robert Falanga and Ronald Chalkier, who are licensed to practice law in and members of the State Bar of Georgia, primarily represent plaintiffs pursuing personal injury and wrongful death claims arising out of automobile accidents. Falanga and Chalker serve as the only lawyers in their five-office law firm headquartered in Atlanta. Most of their clients are poor and uneducated. Falanga and Chalker retain new clients through in-person, telephone and direct mail solicitation. They obtain the names of potential clients in two principal ways. First, the law firm's "public relations" agent asks doctors and chiropractors to recommend Falanga and Chalker to injured patients and grieving family members in need of legal services. In return, Falanga and Chalker treat the doctors and chiropractors to lunch and provide free legal advice. Additionally, law firm employees sift through police reports at the Department of Safety. With this information, Falanga and Chalker mail approximately 300 letters and brochures per week to accident victims.

In June 1992, upon receiving a sworn grievance from a chiropractor, the State Bar of Georgia began investigating Falanga and Chalker for breaches of several professional conduct standards. Ultimately, the State Bar "credibl [y] threat[ened] [to] prosecut[e]" Falanga and Chalker for violating Standards 5(a)(2), 5(a)(3), 6(b), 7(a), 8, 12, 13, 16, 17(a) and 18 of Rule 4-102. Wilson v. State Bar of Ga., 132 F.3d 1422, 1428 (11th Cir.1998). To stop disciplinary proceedings, Falanga and Chalker filed a complaint in the United States District Court for the Northern District of Georgia. Pursuant to 42 U.S.C. § 1983, Falanga and Chalker alleged, among other things, that enforcement of these standards would violate their commercial speech rights under the First Amendment, as incorporated through the Fourteenth Amendment. After conducting a non-jury trial, the district court sustained as constitutional all but the restrictions on lawyers' in-person, uninvited solicitation, Standards 12, 16 (only as it relates to 12) and 17(a). Declaring these three standards unconstitutional, the court enjoined the State Bar from enforcing them against any lawyer. Falanga, et al. v. State Bar of Georgia, 150 F.3rd 1333 (11th Cir. 1998).

In State disciplinary case, DR-4-102, Standards 12, 13 and 16 were squarely in issue. Those standards state in pertinent part as follows:

Standard 12. A lawyer shall not solicit professional employment as a private practitioner for himself, his partner or associate, through direct personal contact with a nonlawyer who has not sought his advice regarding employment of a lawyer. A violation of this standard may be punished by disbarment. Standard 13. A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment by a client, or as a reward for having made a recommendation resulting in his employment by a client; except that he may pay for public communications permitted by Standard 5 and the usual and reasonable fees or dues charged by a bona fide lawyer referral service operated by an organization authorized by law and qualified to do business in this state; provided, however, such organization has filed with the State Disciplinary Board, at least annually, a report showing its terms, its subscription charges, agreements with counsel, the number of lawyers participating, and the names and addresses of lawyers participating in the service. A violation of this standard may be punished by disbarment. Standard 16. A lawyer shall not accept employment when he knows or it is obvious that the person who seeks his services does so as a result of conduct by any person or organization prohibited under Standards 12, 13, 14 or 15. A violation of this standard may be punished by disbarment.

Apparently the language used by the drafters of Standards 12, 13 and 16 mean something different to the Georgia State Bar (and, we suppose somewhat tacitly accepted by the Georgia Supreme Court), than they do to the laity or this author. We asserted in our paper on Runners that nothing good could flow from the use of non-lawyers to solicit (primarily) personal injury cases. We still believe that statement to be the best Rule for a Bar that polices itself.

Given the State Bar of Georgia was substantially successful at the 11th Circuit, it is a mystery to this author why the State Bar later collapsed and settled for a mere reprimand. Consider the strong language the 11th Circuit wrote in support of the Georgia State Bar:

Georgia and Ohio restrict lawyers' in-person, uninvited solicitation through substantially identical means. Falanga and Chalker, like Ohralik, practice personal injury law. All three lawyers (and/or their agents) solicit automobile accident victims face-to-face. Unlike the CPA in Edenfield, Falanga and Chalker do not contact "prospective business clients[.]" 507 U.S. at 771, 113 S.Ct. 1792 (emphasis added). Rather, most of their clients are poor and uneducated individuals. Thus, although Falanga's and Chalker's conduct may not be as egregious as Ohralik's, they cannot seriously contend that Edenfield saves their case. See Ohralik, 436 U.S. at 468, 98 S.Ct. 1912 ("[T]he absence of explicit proof or findings of harm or injury is immaterial.").

* * *

To be sure, Falanga's and Chalker's circumstances fall squarely within this category of "ambulance chasing." Brotherhood of R.R. Trainmen v. Virginia ex rel. Va. State Bar, 377 U.S. 1, 6, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964) (cited in Ohralik, 436 U.S. at 459 n. 16, 98 S.Ct. 1912).

* * *

In light of the foregoing, we hold that the district court erred in concluding that the State Bar failed to justify Georgia's restrictions on commercial speech as contained within Standards 12, 16 (only as it relates to 12) and 17(a), but correctly found that Standards 13 and 16 (only as it relates 13) pass constitutional muster.

III. CONCLUSION

We hold that Georgia's prohibiting lawyers and their agents from engaging in in-person, uninvited solicitation of professional employment does not violate the First Amendment commercial speech rights of Falanga, Chalker and other similarly situated lawyers who approach "unsophisticated, injured, or distressed lay person[s]." 150 F3rd 1333 (11th Cir., 1998).

The State Bar contends that the outcome was "reasonable," given that the case lasted 8 years and wound through 2 federal courts. FCDR, July 27, 2000 at 1. However, the State Bar, which cannot assert that is has any shortage of legal talent and is suppose to be the watchdog for the Bar and the Citizens of the State of Georgia, have left us with a muddy set of Standards in the area of solicitation.