Falanga v. State Bar of Georgia

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________________

Nos. 96-8972 & 96-9491
________________________________

D.C. Docket No. 1:95-CV-2160-GET

ROBERT FALANGA, Individually and
RONALD F. CHALKER, Individually,

Plaintiffs-Appellees, Cross-Appellants,
versus

STATE BAR OF GEORGIA,

Defendant-Appellant, Cross-Appellee.

_______________________________

No. 97-8062
_______________________________

D.C. Docket No. 1:95-CV-2160-GET

ROBERT FALANGA, Individually;
RONALD F. CHALKER, Individually, et al.

Plaintiffs-Appellants,
versus

STATE BAR OF GEORGIA,
Defendant-Appellee.
___________________________________________________

Appeals from the United States District Court
for the Northern District of Georgia
____________________________________________________
(August 19, 1998)

Before HATCHETT, Chief Judge, EDMONDSON and COX, Circuit Judges.
HATCHETT, Chief Judge.

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, affirming in part and reversing in

part the judgment of the district court.

I. BACKGROUND

Appellees/cross-appellants Robert Falanga and Ronald Chalker, 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.

2
 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).1 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

1
The State Bar does not challenge Falanga’s and Chalker’s individual or
collective standing to bring this lawsuit. Nevertheless, we have combed the record to
satisfy our “independent obligation to consider standing[.]” Jacobs v. Florida Bar, 50
F.3d 901, 904 n.12 (11th Cir. 1995); see Lujan v. Defenders of Wildlife, 504 U.S. 555,
561 (1992) (the existence of standing “must be supported adequately by the evidence
adduced at trial”) (internal quotation marks and citations omitted). In investigatory
correspondence with Falanga and Chalker, the State Bar specifically referenced all but
Standards 7(a), 17(a) and 18. These three standards, however, closely relate to the ones
that the State Bar specifically referenced. As such, a “credible threat of prosecution”
looms over Falanga and Chalker as to all ten provisions. Jacobs, 50 F.3d at 904 (a lawyer
possesses standing to challenge the constitutionality of rules of professional responsibility
if the lawyer shows “that either (1) he [or she] was threatened with prosecution; (2)
prosecution is likely; or (3) there is a credible threat of prosecution”) (internal quotation
marks and citations omitted). Additionally, Falanga and Chalker testified that they intend
to engage in conduct that these standards prohibit. See Texans Against Censorship, Inc.
v. State Bar of Tex., 888 F. Supp. 1328, 1340 (E.D. Tex. 1995) (dismissing lawyers’
constitutional challenges because they expressed no “credible intention of engaging in
conduct that would be proscribed by” certain rules of conduct), aff’d, 100 F.3d 953 (5th
Cir. 1996).
3
incorporated through the Fourteenth Amendment.2 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).3 Declaring

these three standards unconstitutional, the court enjoined the State Bar from enforcing

them against any lawyer.

II. DISCUSSION

In part A, we discuss whether Standards 12, 13, 16 and 17(a) – prophylactic bans

on lawyers’ and their agents’ in-person, uninvited solicitation – are constitutional as

applied to Falanga and Chalker.4 In part B, we address the constitutionality of the

2
Prior to trial, the parties signed a written agreement that the State Bar would not
prosecute Falanga or Chalker until the district court resolved the lawsuit. They also
agreed to substitute a nominal plaintiff, Ralph Goldberg, to challenge the standards that
Falanga and Chalker faced formal charges for violating. (Goldberg is not a party to this
appeal.) The district court accepted this agreement and declined to abstain from deciding
the case. See Younger v. Harris, 401 U.S. 37, 53 (1971). No party takes issue with the
district court’s action. Because it appears that “Younger abstention is not jurisdictional,”
we assume without deciding that the district court properly accepted the agreement not to
abstain. Benavidez v. Eu, 34 F.3d 825, 829 (9th Cir. 1994).
3
The district court rejected Falanga’s and Chalker’s contentions that the standards
were impermissibly vague, the standards’ disparate treatment of personal injury lawyers
ran afoul of the Equal Protection Clause, and the State Bar’s application of its rule of
procedure violated their procedural due process rights. Falanga and Chalker do not cross-
appeal the equal protection and due process rulings. They do, however, “maintain that
most, if not all, of the rules are so vague that they cannot pass first [sic] Amendment
muster.” Answer/Initial Cross-Appeal Brief at 15. We reject this cursory contention as
meritless. See Wilson, 132 F.3d at 1430 (rules are not impermissibly vague if lawyers
“can derive a core meaning from” them).
4
The parties do not dispute that all of Falanga’s and Chalker’s constitutional
claims are as-applied ones, even though portions of the record indicate that they
challenged the standards on their face. E.g., Answers to Interrogatories at 5 (The State
4
standards on lawyers’ advertising that the district court upheld – Standards 5(a)(2),

5(a)(3), 6(b), 7(a), 8 and 18. Where, as here, the parties to a First Amendment case

dispute only the district court’s findings of constitutional (as opposed to historical) fact,

our standard of review is de novo. See Don’s Porta Signs, Inc. v. City of Clearwater, 829

F.2d 1051, 1053 n.9 (11th Cir. 1987) (“In cases involving first amendment claims, an

appellate court must make an independent examination of the whole record . . . . [A]n

appellate court is not bound by the ‘clearly erroneous’ standard of review in determining

whether a commercial speech regulation directly advances the government’s goals or is

more extensive than necessary.”) (citations omitted), cert. denied, 485 U.S. 981 (1988).

A.

All 50 states and the District of Columbia regulate lawyers’ and their agents’ in-

person solicitation of professional employment.5 Georgia is no exception.6 It prohibits

Bar “has promulgated, maintained and now sought to enforce, Professional Standards
which are facially violative of the First Amendment of the Constitution of the United
States.”) (emphasis added). Wisely, Falanga and Chalker abandoned their facial
challenges, perhaps realizing that “when a plaintiff attacks a law facially, the plaintiff
bears the burden of proving that the law could never be constitutionally applied.” Jacobs,
50 F.3d at 906 n.20. To be sure, Falanga and Chalker “seek to vindicate their own
rights,” not the rights of all Georgia lawyers. Jacobs, 50 F.3d at 906.
5
See Alabama Rules of Ct., R. Prof. Conduct 7.3(a) (West 1998); Alaska Ct.
Rules, R. Prof. Conduct 7.3 (West 1997); Ariz. Rev. Stat. Ann., Supreme Ct. R. 42, ER
7.3 (1998); Arkansas Rules of Ct., Model R. Prof. Conduct 7.3 (West 1998); Cal. Bus. &
Prof. Code, R. Prof. Conduct for the State Bar 1-400(C) (West 1998); Colo. Rev. Stat.
Ann., R. Prof. Conduct 7.3 (West 1998); Connecticut Rules of Ct., Rules of Professional
Conduct 7.3(a) (West 1997); Delaware Rules of Ct., Lawyers’ R. Prof. Conduct 7.3 (West
1997); District of Columbia Rules of Ct., Rules Governing the Bar app. A, R. Prof.
Conduct 7.1(b)-(d) (West 1998); R. Reg. Fla. Bar 4-7.4 (1998); Georgia Rules of Ct.
Ann., Rules & Regulations for the Org. and Gov’t of the State Bar of Ga., Rule 4-102,
5
Standards 12, 13, 17 (Michie 1998); Hawai’i Ct. Rules, Rules of the Supreme Ct., Ex. A,
R. Prof. Conduct 7.3 (West 1997); Idaho Rules of Ct., R. Prof. Conduct 7.3 (West 1997);
Ill. Ann. Stat., Supreme Ct. Rules, R. Prof. Conduct 7.3 (Smith-Hurd 1998); Ind. Code
Ann., R. Prof. Conduct 7.3 (West 1998); Iowa Code Ann. tit. XV, subtit. 2, ch. 602 app.,
Code Prof. Resp. for Lawyers, DR 2-101(B)(4)(a) (West 1998); Kansas Ct. Rules &
Procedure, Supreme Ct. R. 226, Model R. Prof. Conduct 7.3 (West 1997); Ky. Rev. Stat.
Ann., Supreme Ct. R. 3.130, R. Prof. Conduct 7.30 (Baldwin 1998); La. Rev. Stat. Ann.,
Articles of Incorp. of the State Bar Ass’n, art. XVI, R. Prof. Conduct 7.2 (West 1998);
Maine Rules of Ct., Bar Rules, Code Prof. Resp., Rule 3.9 (f) (West 1997); Maryland
Rules of Ct., R. Proced. 16-812, R. Prof. Conduct 7.3 (West 1998); Massachusetts Rules
of Ct., Supreme Judicial Ct. R. 3:07, R. Prof. Conduct 7.3 (West 1998); Michigan Rules
of Ct., R. Prof. Conduct 7.3 (West 1998); Minn. Stat. Ann., R. Prof. Conduct 7.3 (West
1997); Mississippi Rules of Ct., R. Prof. Conduct 7.3 (West 1997); Missouri Ct. Rules,
Supreme Ct. R. 4, R. Prof. Conduct 4-7.3 (West 1998); Montana Rules of Ct., R. Prof.
Conduct 7.3 (West 1997); Nebraska Ct. Rules & Procedure, Rules of the Supreme Ct./Ct.
of Appeals, Code Prof. Resp., DR 2-104 (West 1998); Nev. Rev. Stat., Supreme Ct.
Rules, R. Prof. Conduct 197 (1997); N.H. Stat. Ann., R. Prof. Conduct 7.3 (1997); New
Jersey Rules of Ct., R. Prof. Conduct 7.3 (West 1997); New Mexico R. of Ct., R. Prof.
Conduct 16-703 (West 1998); N.Y. Jud. Law app., Code Prof. Resp., DR 2-103(A), DR
2-104(A)-(C) (McKinney 1997); North Carolina Rules of Ct., State Bar Rules, Rev. R.
Prof. Conduct 7.3 (West 1997); North Dakota Ct. Rules, R. Prof. Conduct 7.1 (West
1998); Ohio Rev. Code Ann., Code Prof. Resp., DR 2-103(A), DR 2-104(A) (Baldwin
1998); Okla. Stat. Ann. tit. 5, R. Prof. Conduct 7.3 (West 1998); Oregon Rules of Ct.,
Code Prof. Resp., DR 2-104 (West 1998); 42 Pa. Cons. Stat. Ann., R. Prof. Conduct 7.3
(1998); Rhode Island Rules of Ct., Supreme Ct. Rules, art. V, R. Prof. Conduct 7.3 (West
1998); S.C. Code Ann., Appellate Ct. Rule 407, R. Prof. Conduct 7.3 (Law. Co-op.
1997); S.D. Codified Laws Ann. tit. 16, chs. 16-18 app., R. Prof. Conduct 7.3 (1997);
Tennessee Rules of Ct., Supreme Ct. R. 8, Code Prof. Resp., DR 2-104 (West 1997); Tex.
Gov’t Code Ann. tit. 2, subtit. Gapp. A, art. X, § 9, Disciplinary R. Prof. Conduct 7.03
(West 1998); Utah Rules of Ct., Supreme Ct. Rules of Prof. Practice, R. Prof. Conduct 7.3
(West 1998); Vermont Rules of Ct., Code Prof. Resp., DR-2-104 (West 1998); Virginia
Rules of Ct., Supreme Ct. Rules, part 6, § 2, Code Prof. Resp., DR 2-103 (A), (F) (West
1997); Washington Ct. Rules, R. Prof. Conduct 7.3 (West 1997); West Virginia Rules of
Ct., R. Prof. Conduct 7.3 (West 1997); Wis. Stat. Ann., Supreme Ct. Rules, ch. 20, R.
Prof. Conduct 7.3 (West 1998); Wyoming Rules of Ct., R. Prof. Conduct for Att’ys at
Law 7.3(a) (West 1997).
6
The Supreme Court of Georgia possesses authority “to regulate and govern the
practice of law” in the state. O.C.G.A. § 15-19-31 (Michie 1994). Pursuant to legislative
permission, the supreme court established “as an administrative arm of the court a unified
6
lawyers from engaging in in-person, uninvited solicitation:

A lawyer shall not solicit professional employment as a
private practitioner for himself, his partner or associate,
through direct personal contact with a non-lawyer who has
not sought his advice regarding employment of a lawyer.

Georgia Rules of Ct. Ann., Rules & Regulations for the Org. and Gov’t of the State Bar

of Ga., Rule 4-102, Standard 12 (Michie 1998).7 Similarly, lawyers may not solicit

through an agent or pay for unregulated referrals:

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 system . . . .

self-governing bar association . . . known as the ‘State Bar of Georgia,’ composed of all
persons licensed to practice law” in the state. O.C.G.A. § 15-19-30. The State Bar
recommends standards of lawyer conduct, but they do not become binding on lawyers
until the supreme court adopts them. See O.C.G.A. § 15-19-31.
7
Throughout this opinion, we quote only those portions of the standards that
Falanga and Chalker constitutionally challenged.

State authorities may punish a lawyer who violates Standard 12 with any level of
discipline up to and including disbarment. See Standard 12; Rule 4-102(b).
7
Georgia Rules of Ct. Ann., Rules & Regulations for the Org. and Gov’t of the State Bar

of Ga., Rule 4-102, Standard 13 (Michie 1998).8 Finally, Georgia prohibits lawyers from

retaining “strangers” to whom they or their agents have rendered unsolicited legal advice:

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[] [or] 13 . . . .

Georgia Rules of Ct. Ann., Rules & Regulations for the Org. and Gov’t of the State Bar

of Ga., Rule 4-102, Standard 16 (Michie 1998).9 And,

[a] lawyer who has given in-person unsolicited advice to a
layperson that he should obtain counsel or take legal action
shall not accept employment resulting from that advice,
except:
(a) A lawyer may accept employment from a close friend,
relative, former client (if the advice is germane to the former
employment), or one whom the lawyer reasonably believes to
be a client[.]

Georgia Rules of Ct. Ann., Rules & Regulations for the Org. and Gov’t of the State Bar

of Ga., Rule 4-102, Standard 17(a) (Michie 1998).10

8
At the time the district court issued its memorandum opinion, Standard 13
contained two subsections; it considered only the constitutionality of then-Standard 13(b).
Effective August 29, 1996, the Supreme Court of Georgia eliminated Standard 13(a).
See Standard 13 cmt. The current version of Standard 13 is identical to then-Standard
13(b). State authorities may punish a lawyer who violates Standard 13 with any level of
discipline up to and including disbarment. See Standard 13; Rule 4-102(b).
9
As with Standards 12 and 13, state authorities may punish a lawyer who violates
Standard 16 with any level of discipline up to and including disbarment. See Standard
16; Rule 4-102(b).
10
Unlike with Standards 12, 13 and 16, the most severe level of discipline a
lawyer who violates Standard 17(a) may receive is a public reprimand. See Standard
8
 Professional responsibility rules on lawyer advertising usually concern purely

commercial speech, as do Georgia’s standards on in-person solicitation. See Shapero v.

Kentucky Bar Ass’n, 486 U.S. 466, 472 (1988) (“Lawyer advertising is in the category of

constitutionally protected commercial speech.”). As such, in determining their

constitutionality, courts apply the “now familiar” framework set forth in Central Hudson

Gas & Electric Corp. v. Public Service Comm’n, 447 U.S. 557, 566 (1980), and its

progeny. Shapero, 486 U.S. at 472. To justify a “regulation of lawyer solicitations for

pecuniary gain[,]” the state must show that: (1) “it has a substantial interest in

proscribing speech”; (2) “the regulation advances the asserted state interest in a direct and

material way”; and (3) “the extent of the restriction is in reasonable proportion to the

interest served.” Shapero, 486 U.S. at 472; Miller v. Stuart, 117 F.3d 1376, 1382 (11th

Cir. 1997) (collecting Supreme Court precedents), cert. denied, 118 S. Ct. 852 (1998).11

At the close of the State Bar’s case-in-chief, the district court granted Falanga’s

and Chalker’s motions for directed verdict as to Standards 12, 16 (only as it relates to 12)

17(a); Rule 4-102(b).
11
Alternatively, the state may ban without justification commercial speech that
“concerns unlawful activity or is misleading.” Miller, 117 F.3d at 1382. Solicitation for
professional employment in and of itself neither “concerns unlawful activity” nor “is
misleading.” Therefore, our discussion does not concern the threshold prong of the
Central Hudson test. See Central Hudson, 447 U.S. at 566 (“For commercial speech to
come within [the First Amendment], it at least must concern lawful activity and not be
misleading.”).
9
and 17(a).12 Applying the Central Hudson test, the court held that: (1) the State Bar has a

substantial interest in (a) “protecting the public from aspects of solicitation that involve

fraud, undue influence, intimidation and overreaching[,]” (b) “protecting the tranquility

and privacy of personal injury victims and their loved ones against intrusive, unsolicited

in-person contact from lawyers[,]” and (c) improving the public’s confidence in the legal

profession; but (2) the proscriptions on lawyers’ in-person, uninvited solicitation do not

directly and materially advance these interests because “[a]lthough the [State Bar’s]

anecdotal evidence demonstrates certain harms that may be associated with in-person

solicitation, . . . [it] has failed to demonstrate that these harms are present in all

circumstances”; and (3) the proscriptions are “substantially broader than necessary to

prevent the harms asserted[.]”

In contrast to its rulings on Standards 12, 16 (only as it relates to 12) and 17(a), the

district court found Standards 13 and 16 (only as it relates to 13) to be constitutional. The

court concluded that: (1) the State Bar has a substantial interest in (a) “promoting the

12
At trial, the State Bar presented evidence before Falanga and Chalker did
because “the party seeking to uphold the restriction on commercial speech carries the
burden of justifying it.” Edenfield v. Fane, 507 U.S. 761, 770 (1993) (internal quotation
marks and citations omitted).

Although Falanga and Chalker labeled their requested relief as a motion for a
directed verdict, they in substance moved for a judgment on partial findings. See Fed. R.
Civ. P. 52(c) (non-jury trials). Directed verdicts apply only in civil jury trials. See Schlitt
v. Florida, 749 F.2d 1482, 1482-83 (11th Cir. 1985). Even if the trial had been before a
jury, recent amendments to the Federal Rules of Civil Procedure have replaced the phrase
“directed verdict” with “judgment as a matter of law.” See Fed. R. Civ. P. 50 & note
(“The [1991] revision abandons the familiar terminology of direction of verdict[.]”).
10
independent judgment of lawyers[,]” (b) “prohibiting the practice of law by a layman[,]”

and (c) “protecting consumers from overreaching by those to be compensated”; (2) the

proscriptions “bear[] a direct relationship” to advancing these interests; and (3)

“prohibiting lawyers from engaging in the practice of paying for referrals is a reasonable

method of preventing the harm caused by the overreaching of certain runners[.]”

The State Bar challenges the district court’s judgment as to Standards 12, 16 (only

as it relates to 12) and 17(a), while Falanga and Chalker cross-appeal its judgment as to

Standards 13 and 16 (only as it relates to 13). The essence of the parties’ dispute lies in

the application of two Supreme Court cases: Ohralik v. Ohio State Bar Ass’n, 436 U.S.

447 (1978), where the Court upheld Ohio’s rules against in-person solicitation as applied

to a plaintiff-side personal injury lawyer, and Edenfield v. Fane, 507 U.S. 761 (1993),

where the Court struck down Florida’s ban on in-person solicitation as applied to a

certified public accountant.

In Ohralik, a personal injury lawyer “approached two young [automobile] accident

victims at a time when they were especially incapable of making informed judgments or

of assessing and protecting their own interests.” 436 U.S. at 467. The driver was laying

in traction in a hospital bed, and the passenger had just returned home from the hospital.

The lawyer solicited both victims individually, “urg[ing]” that they retain him. 436 U.S.

at 467. He relayed information about the driver’s parents’ automobile insurance contract

to the passenger. Concealing a tape recorder to evince the victims’ assent, the lawyer

“emphasized that his fee would come out of the recovery, thereby tempting the young

11
[adults] with what sounded like a cost-free and therefore irresistible offer.” 436 U.S. at

467. Finally, the day after he obtained consent to represent both the driver and the victim,

the lawyer refused the passenger’s request that he withdraw. 436 U.S. at 467.

After both the driver and the passenger filed grievances, Ohio authorities sought to

discipline the lawyer for in-person solicitation, in violation of Disciplinary Rules (DR) 2-

103(A) and 2-104(A) of the state’s Code of Professional Responsibility. 436 U.S. at 452-

53. DR 2-103(A) provides that “[a] lawyer shall not recommend employment, as a

private practitioner, of himself, his partner, or associate to a non-lawyer who has not

sought his advice regarding employment of a lawyer.” 436 U.S. at 453 n.9.13 Similarly,

DR 2-104(A) reads:

A lawyer who has given unsolicited advice to a layman that
he should obtain counsel or take legal action shall not accept
employment resulting from that advice, except that:
(1) A lawyer may accept employment by a close friend,
relative, former client (if the advice is germane to the former
employment), or one whom the lawyer reasonably believes to
be a client.

13
Ohio’s current version of DR 2-103(A) is substantially the same as the version
at issue in Ohralik. See Ohio Rev. Code Ann., Code Prof. Resp., DR 2-103(A) (Baldwin
1998) (gender neutral changes).
12
436 U.S. at 453 n.9.14 The Supreme Court of Ohio sanctioned the lawyer, rejecting his

contention that enforcement of the two rules violated his First Amendment commercial

speech rights. 436 U.S. at 453-54.

The United States Supreme Court affirmed, holding that a state “constitutionally

may discipline a lawyer for soliciting clients in person, for pecuniary gain, under

circumstances likely to pose dangers that the State has a right to prevent.” 436 U.S. at

449, 468. The Court characterized Ohralik’s conduct as “a striking example of the

potential for overreaching that is inherent in a lawyer’s in-person solicitation of

professional employment.” 436 U.S. at 468 (emphasis added). Although Ohralik pre-

dated Central Hudson, the Court’s conclusions fit within its framework: (1) the State has

a substantial interest in protecting the public from “those aspects of solicitation that

involve fraud, undue influence, intimidation, overreaching, and other forms of vexatious

conduct”; (2) “[t]he State’s perception of the potential for harm in circumstances” where

“a lawyer, a professional trained in the art of persuasion, personally solicits an

unsophisticated, injured, or distressed lay person” was “well founded”; and (3) the State

need not prove actual harm to the person solicited because in one-on-one situations it is

“difficult or impossible to obtain reliable proof of what actually took place.” 436 U.S. at

462, 464-66 (internal quotation marks omitted).

14
Like the current version of Ohio’s DR 2-103(A), the current version of DR 2-
104(A) is substantially the same as the version at issue in Ohralik. See Ohio Rev. Code
Ann., Code Prof. Resp., DR 2-104(A) (Baldwin 1998) (substituting parenthesis for
commas).
13
 Nearly fifteen years after Ohralik, the Supreme Court decided Edenfield. In that

case, a certified public accountant (CPA) wanted to “obtain[] business clients by making

unsolicited telephone calls to their executives and arranging meetings to explain his

services and expertise.” 507 U.S. at 763. Florida law, however, prohibited the CPA from

doing so:

[A] CPA shall not by any direct, in-person, uninvited
solicitation [including telephone calls] solicit an engagement
to perform public accounting services . . . where the
engagement would be for a person or entity not already a
client of the CPA, unless such person or entity has invited
such a communication.

507 U.S. at 764 (quoting Fla. Admin. Code § 21A-24.002(2)(c), 21A-24.002(3) (1992))

(internal quotation marks and alterations omitted). The United States Supreme Court

agreed with the CPA that “Florida’s blanket ban on direct, in-person, uninvited

solicitation by CPA’s cannot be sustained as applied to [the CPA’s] proposed speech.”

507 U.S. at 767. Reaching only the first two prongs of the Central Hudson test, the Court

concluded that: (1) the State has a substantial interest in (a) “ensuring the accuracy of

commercial information in the marketplace[,]” (b) “protect[ing] . . . potential clients’

privacy[,]” and (c) “maintaining standards of ethical conduct in the licensed

professions[,]” including requiring “CPA independence and ensuring against conflicts of

interest”; but (2) Florida failed to “demonstrate[] that, as applied in the business context,

the ban on CPA solicitation advance[d] its asserted interests in any direct and material

way.” 507 U.S. at 769-71.

14
 Reviewing the record, the Edenfield Court found “no studies” nor “any anecdotal

evidence, either from Florida or another State” that “suggest[ed] personal solicitation of

prospective business clients by CPA’s creates the dangers of fraud, overreaching, or

compromised independence that [Florida] claim[ed] to fear.” 507 U.S. at 771. The Court

rejected as “conclusory” Florida’s only evidence, a sworn affidavit of the former

chairperson of the state’s accounting board. 507 U.S. at 771. Finally, the Court pointed

to national reports and accounting literature that acknowledged the absence of “empirical

data” or “persuasive evidence” that in-person solicitation “likely . . . lead[s] to false or

misleading claims[,] oppressive conduct” or “compromised independence” on the part of

CPAs. 507 U.S. at 772.

Plainly, this case is closer to Ohralik than Edenfield. 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

(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 (“[T]he absence of explicit proof or findings of harm or injury is immaterial.”).

In case our interpretation of these two authorities leaves any doubt about their

differences, the Supreme Court itself distinguished Edenfield from Ohralik:

15
 Unlike a lawyer, a CPA is not “a professional trained in the
art of persuasion.” A CPA’s training emphasizes
independence and objectivity, not advocacy. . . . The typical
client of a CPA is far less susceptible to manipulation than the
young accident victim in Ohralik. Fane’s prospective clients
are sophisticated and experienced business executives who
understand well the services that a CPA offers. . . . In
general, the prospective client has an existing professional
relation with an accountant and so has an independent basis
for evaluating the claims of a new CPA seeking professional
work.

Edenfield, 507 U.S. at 775 (internal citations omitted). It is true that the Edenfield Court

viewed Ohralik’s holding as “narrow and depend[ent] upon certain unique features of in-

person solicitation by lawyers that were present in the circumstances of that case.”

Edenfield, 507 U.S. at 774 (internal quotation marks omitted). As the Edenfield Court’s

quoted excerpt from Ohralik makes clear, however, the essential circumstances of Ohralik

were that a lawyer engaged in “uninvited” in-person solicitation of “unsophisticated,

injured, or distressed lay person[s].” Edenfield, 507 U.S. at 774-75 (quoting Ohralik, 436

U.S. at 465-66). 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 (1964) (cited in Ohralik, 436 U.S. at 459 n.16).

Notwithstanding their reliance on Edenfield, Falanga and Chalker dispute the

sufficiency of the State Bar’s evidence, contending that it failed to advance any concrete

proof of the harm that allegedly results from in-person solicitation. We, however, are not

convinced. It is true that the State Bar may not rely on “mere speculation or conjecture”

to satisfy its burden of justifying Georgia’s proscriptions. Edenfield, 507 U.S. at 770. On

16
the other hand, commercial speech jurisprudence does not require it to present “empirical

data . . . accompanied by a surfeit of background information.” Florida Bar v. Went For

It, Inc., 515 U.S. 618, 628 (1995) (“[W]e have permitted litigants to justify speech

restrictions by reference to studies and anecdotes pertaining to different locales

altogether[.]”). Rather, the State Bar’s case may rest “solely on history, consensus, and

simple common sense[.]” Went For It, 515 U.S. at 628 (internal quotation marks and

citation omitted).

Given these boundaries, the State Bar met its burden of proof as a matter of law.

First and foremost, because for all intents and purposes this case is Ohralik, the State

Bar’s reliance on that Court’s findings of fact and conclusions of law may have been

sufficient in and of itself to justify the standards. See Went For It, 515 U.S. at 628;

Ohralik, 436 U.S. at 468 (facts of the case “demonstrate the need for prophylactic

regulation in furtherance of the State’s interest in protecting the lay public”).15 The State

Bar, however, presented more. Both its general counsel and assistant general counsel

provided anecdotal evidence, relaying the public’s complaints about in-person, telephonic

and direct mail solicitation. An accident victim herself testified about the intrusive nature

of solicitation that Falanga himself initiated.16

15
But cf. Schwartz v. Welch, 890 F. Supp. 565, 574-76 (S.D. Miss. 1995)
(although the professional conduct rules at issue had been upheld “in different forums[,]”
the court declared them unconstitutional because the state “ignored [its] burden” and
failed to provide “proof”).
16
The district court acknowledged that this “anecdotal evidence demonstrates
certain harms that may be associated with in-person solicitation[.]”
17
 Additionally, the State Bar presented the results of an independently-conducted

study entitled “Consumer Reactions to Legal Services Advertising in the State of

Georgia.” Although this study focused on television advertising, some of its conclusions

are relevant to in-person solicitation.17 As the district court recognized, the study posits

that the more intrusive the advertising method, the more negative the public’s view of

lawyers. In fact, the percentage of unfavorable responses increased steadily as consumers

considered yellow pages, television, direct mail and telephonic solicitation, and “personal

contact” was the “single greatest influence on [the public’s] image of lawyers.” Overall,

the highest percentage of respondents agreed with the proposition that “lawyers track

down injured people and try to talk them into taking legal action.” Instead, according to

the study, consumers “[o]verwhelmingly” prefer to choose a lawyer through methods that

they control, that is, references from family, friends, co-workers, etc. From this

information, the State Bar could reasonably infer that the majority of legal service

consumers view in-person solicitation – whether through lawyers or their agents – as

unduly intrusive, destructive to the court system and deserving of regulation.

Supplementing this anecdotal and study evidence, history cuts in favor of the State

Bar. Although the Supreme Court of Georgia adopted the standards at issue in the early

1980s, proscriptions on in-person solicitation have been a part of the State Bar’s

17
At trial, even Falanga’s counsel admitted that the study was at least partially
relevant to in-person solicitation. Tr. at 115 (study “deals with the effect of very
individual elements of advertising and solicitation on both public image as well as fraud
or other kinds of conduct that might arise from it”) (emphasis added).
18
regulatory scheme since its creation in 1963. Thus, it is “not surprising” that the State

Bar’s evidence lacked specificity on the extent of the harm associated with in-person

solicitation. Texans Against Censorship, Inc. v. State Bar of Texas, 888 F. Supp. 1328,

1353 (E.D. Tex. 1995) (upholding, among other rules, Texas’s proscription on lawyers’

telephonic solicitation, noting that “Texas lawyers have been prohibited from telephonic

solicitation for some time, and hence a lack of evidence as to fraudulent telephonic

solicitations by Texas lawyers is not surprising”), aff’d, 100 F.3d 953 (5th Cir. 1996).

In addition to history, consensus supports the State Bar’s view. The American Bar

Association (ABA) opines that

[t]here is a potential for abuse inherent in direct in-person or
live telephone contact by a lawyer with a prospective client
known to need legal services. These forms of contact
between a lawyer and a prospective client subject the
layperson to the private importuning of the trained advocate
in a direct interpersonal encounter. The prospective client,
who may already feel overwhelmed by the circumstances
giving rise to the need for legal services, may find it difficult
fully to evaluate all available alternatives with reasoned
judgment and appropriate self-interest in the face of the
lawyer’s presence and insistence upon being retained
immediately. The situation is fraught with the possibility of
undue influence, intimidation, and over-reaching.

A.B.A. Model Rules of Professional Conduct, Rule 7.3 cmt. (1995). Accordingly, the

ABA recommends banning in-person, uninvited solicitation for pecuniary gain:

(a) A lawyer shall not by in-person or live telephone contact
solicit professional employment from a prospective client
with whom the lawyer has no family or prior professional
relationship when a significant motive for the lawyer’s doing
so is the lawyer’s pecuniary gain.

19
 (b) A lawyer shall not solicit professional employment from a
prospective client . . . by in-person or telephone contact even
when not otherwise prohibited by paragraph (a), if:
(1) the prospective client has made known to the lawyer a desire
not to be solicited by the lawyer; or
(2) the solicitation involves coercion, duress or harassment.

Model Rule 7.3. No less than 32 states proscribe in-person solicitation in the same or

similar manner.18 Ten other states have rules identical or similar to those of Georgia and

Ohio.19 Two states appear to prohibit in-person, uninvited solicitation under any

18
These states are: (1) Alabama, (2) Alaska, (3) Arizona, (4) Arkansas, (5)
Colorado, (6) Delaware, (7) Florida, (8) Hawai’i, (9) Idaho, (10) Illinois, (11) Indiana,
(12) Kansas, (13) Kentucky, (14) Louisiana, (15) Michigan, (16) Minnesota, (17)
Mississippi, (18) Missouri, (19) Nevada, (20) New Hampshire, (21) New Jersey, (22)
North Carolina, (23) Oklahoma, (24) Pennsylvania, (25) Rhode Island, (26) South
Carolina, (27) South Dakota, (28) Tennessee, (29) Texas, (30) Utah, (31) Washington,
and (32) West Virginia. (For citations, see supra note 5.) Cf. O’Quinn v. State Bar of
Texas, 763 S.W.2d 397, 398, 401-02 (Tex. 1988) (holding that “a ban against in-person
solicitation of clients by lawyers or runners is substantially related to legitimate state
goals and could not be more narrowly tailored”). See generally Lawyer Disciplinary Bd.
v. Allen, 479 S.E.2d 317, 328 (W. Va. 1996) (holding that commercial speech
jurisprudence does not protect “direct telephone solicitation of a prospective client with
whom the lawyer has no family or prior professional relationship, when at least partially
motivated by the potential for the lawyer’s pecuniary gain”).

Prior to its restricting in-person solicitation, New Jersey experienced “definite
social harms” such as “harassment, over-reaching, provocation of nuisance litigation and
schemes for systematic fabrication of claims[.]” New Jersey Rules of Ct., R. Prof.
Conduct 7.3 cmt. (West 1997).
19
These states are: (1) Connecticut, (2) Maryland, (3) Missouri, (4) Nebraska, (5)
New Mexico, (6) New York, (7) Oregon, (8) Vermont, (9) Wisconsin, and (10)
Wyoming. (For citations, see supra note 5.) See generally Unnamed Att’y v. Attorney
Grievance Comm’n, 545 A.2d 685, 691 (Md. 1988) (“[W]ritten modes of solicitation (as
opposed to in-person solicitation) are protected by the First Amendment, regardless of the
recipient’s condition, so long as such communication is neither false, misleading, nor
overreaching.”) (emphasis added).

20
circumstance.20 Virginia allows in-person solicitation for many purposes except

“compensation in a personal injury or wrongful death claim.”21 California’s rule begs the

question, that is, it prohibits lawyers and their agents from soliciting most potential clients

unless the First Amendment protects their speech.22 Only four jurisdictions -- the District

The regulations that these twelve states (including Georgia and Ohio) employ
resemble the ABA’s Model Code of Professional Responsibility (1980), the predecessor
to the Model Rules. The Model Code is not materially different from the Model Rules
with respect to in-person solicitation. If anything, the Model Code is less restrictive than
the Model Rules because only the former (at least Georgia’s and Ohio’s version of it)
permits lawyers to solicit “close friends.” Standard 17(a); Tr. at 207 (testimony of the
State Bar’s general counsel).

Prior to their restricting in-person solicitation, Connecticut and Maryland, like
New Jersey, experienced “definite social harms” such as “harassment, over-reaching,
provocation of nuisance litigation and schemes for systematic fabrication of claims[.]”
Connecticut Rules of Ct., Rules Prof. Conduct 7.3 cmt. (West 1997); Maryland Rules of
Ct., R. Proced.16-812, R. Prof. Conduct 7.3 cmt. (West 1998).
20
See Iowa Code Ann. tit. XV, subtit. 2, ch. 602 app., Code Prof. Resp. for
Lawyers, DR 2-101(B)(4)(a) (West 1998) (banning “in-person . . . solicitation of legal
business under any circumstance”) (emphasis added); Massachusetts Rules of Ct.,
Supreme Judicial Ct. R. 3:07, R. Prof. Conduct 7.3(d) & cmt. (West 1998) (absent the
prospective client’s initiation, “[a] lawyer shall not solicit professional employment for a
fee from a prospective client in person”); cf. In the Matter of Amendment to S.J.C. Rule
3:07, DR 2-103 & DR 2-104, 495 N.E.2d 282, 286 (Mass. 1986) (adopting a
“prophylactic rule imposing a blanket ban on all in-person solicitation[,]” including
friends, relatives and former clients, because “unless the prohibition is all inclusive, the
Commonwealth’s interests in professionalism and the prevention of misrepresentation and
overreaching are not adequately served”) (emphasis added).
21
Virginia Rules of Ct., Supreme Ct. Rules, part 6, § 2, Code Prof. Resp., DR 2-
103(A), (F) (West 1997) (absent lies, undue influence, harassment, etc., or “a substantial
potential for” any such conduct, lawyers may solicit potential clients for professional
employment other than “compensation in a personal injury or wrongful death claim”).
22
See Cal. Bus. & Prof. Code, R. Prof. Conduct for the State Bar 1-400(C) (West
1998); cf. In Matter of Scapa, Nos. 88-0-12498, 88-0-12499, 2 Cal. State Bar Ct. Rptr.
21
of Columbia, Maine, Montana and North Dakota -- liberally permit in-person solicitation,

but not without limitation.23

As for “simple common sense,” we need go no further than the four-corners of

Ohralik. Contrasting in-person solicitation from “truthful, restrained advertising

635, 652 (Cal. Bar Ct., Nov. 3, 1993) (evidence that lawyers’ agents solicited injured
persons “armed with police accident reports the victims wanted and often could not
obtain themselves as quickly” showed “the constitutional justification for California’s
rules prohibiting in-person solicitation”).
23
See District of Columbia Rules of Ct., Rules Governing the Bar app. A, R. Prof.
Conduct 7.1(b)-(d) (West 1998) (absent lies or undue influence, lawyers may solicit
potential clients face-to-face unless they are “apparently in a physical or mental condition
which would make it unlikely that the potential client[s] could exercise reasonable,
considered judgment as to the selection of a lawyer”); Maine Rules of Ct., Bar Rules,
Code Prof. Resp., Rule 3.9 (f) (West 1997) (absent lies or harassment, lawyer may solicit
a potential client face-to-face unless “the circumstances create an appreciable risk of
undue influence by the lawyer or ill-considered action by the person being solicited” such
as someone “under treatment in a hospital”); Montana Rules of Ct., R. Prof. Conduct 7.3
(West 1997) (absent harassment, a lawyer may solicit a potential client face-to-face
unless he or she tells the lawyer to stop or the lawyer “knows or reasonably should know
that the physical, emotional, or mental state of the person is such that the person cannot
exercise reasonable judgment in employing a lawyer”); North Dakota Ct. Rules, R. Prof.
Conduct 7.1 (West 1998) (absent lies, undue influence, harassment, etc., a lawyer may
engage in in-person, uninvited solicitation).

Although it generally finds “no significant distinction between disseminating
information and soliciting clients through mass media or through individual personal
contact[,]” the District of Columbia does recognize that “[i]n-person solicitation can . . .
create additional problems” in circumstances “not conducive to intelligent, rational
decisions.” District of Columbia Rules of Ct., Rules Governing the Bar app. A, R. Prof.
Conduct 7.1 cmt. (West 1998).

This consensus information stands in sharp contrast to that in Edenfield, where
only four states, including Florida, prohibited CPA’s from soliciting potential clients
face-to-face. 507 U.S. at 771. As to lawyers, the converse exists – only four jurisdiction
allow in-person solicitation, and even they employ some restrictions on it.
22
concerning the availability and terms of routine legal services,” prohibitions on which the

Court struck down in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the Court

opined that

[u]nlike a public advertisement, which simply provides
information and leaves the recipient free to act upon it or not,
in-person solicitation may exert pressure and often demands
an immediate response, without providing an opportunity for
comparison or reflection. The aim and effect of in-person
solicitation may be to provide a one-sided presentation and to
encourage speedy and perhaps uninformed decisionmaking;
there is no opportunity for intervention or counter-education
by agencies of the Bar, supervisory authorities, or persons
close to the solicited individual. The admonition that “the
fitting remedy for evil counsels is good ones” is of little value
when the circumstances provide no opportunity for a remedy
at all. In-person solicitation is as likely as not to discourage
persons needing counsel from engaging in a critical
comparison of the “availability, nature, and prices” of legal
services . . . ; it actually may disserve the individual and
societal interest . . . in facilitating “informed and reliability
decisionmaking.”

Ohralik, 436 U.S. at 454, 457-58 (internal citations and footnotes omitted). Several Court

decisions echo this “common sense,” reading Ohralik to mean that “a State may

categorically ban” all “in-person solicitation by lawyers for profit[.]” Shapero v.

Kentucky Bar Ass’n, 486 U.S. 466, 472 (1988); Zauderer v. Office of Disciplinary

Counsel of the Supreme Court of Ohio, 471 U.S. 626, 641 (1985) (The “possibilities for

overreaching, invasion of privacy, the exercise of undue influence, outright fraud” and

other “unique features of in-person solicitation by lawyers . . . justif[y] a prophylactic rule

prohibiting lawyers from engaging in solicitation for pecuniary gain[.]”); In re R.M.J.,

23
455 U.S. 191, 202 (1982) (“In Ohralik[,] . . . . the Court held that the possibility of fraud,

undue influence, intimidation, overreaching, and other forms of vexatious conduct, was

so likely in the context of in-person solicitation, that such solicitation could be

prohibited.”) (internal quotation marks omitted).

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.24 Unquestionably,

the interests that the State Bar asserted are substantial, namely, protecting the public from

vexatious conduct (Standards 12, 13, 16 and 17(a)); preventing invasions of privacy and

improving the public’s confidence in the legal profession (Standards 12, 16 (only as it

relates to 12) and 17(a)); promoting the independent judgment of lawyers and prohibiting

the unauthorized practice of law (Standards 13 and 16). See Ohralik, 436 U.S. at 462;

Edenfield, 507 U.S. at 769-70; Went For It, 515 U.S. at 625.

Standards 12, 16 (as it relates to 13) and 17(a) “directly and materially advance[]”

at least one of these respective interests. Went For It, 515 U.S. at 624, 625 n.1. As we

have discussed, the State Bar presented sufficient evidence as a matter of law to

24
Additionally, the district court charged the State Bar with the wrong burden of
proof. It stated that “the Bar . . . failed to demonstrate that [the harms associated with in-
person solicitation] are present in all circumstances.” (Emphasis added). In an as-applied
challenge, however, “the constitutionality of a ban on personal solicitation will depend
upon the identity of the parties and the precise circumstances of the solicitation.”
Edenfield, 507 U.S. at 774 (emphasis added).
24
“demonstrate that the harms it recites are real and that its restriction will in fact alleviate

them to a material degree.” Went For It, 515 U.S. at 626 (internal quotation marks and

citation omitted). The same conclusions are equally, if not more, applicable to Standards

13 and 16 (as it relates to 13). See Ohralik, 436 U.S. at 464 n.22 (“solicitation by a

lawyer’s agents or runners . . . present[s] similar problems” as solicitation by a lawyer).

Finally, Georgia’s prophylactic ban on in-person solicitation, whether the actor be

a lawyer or a non-lawyer, stands in reasonable proportion to the interest served. See

Board of Trustees of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989). The

standards at issue are not over-inclusive as applied to the essential circumstances of this

case, as “we do not see numerous and obvious less-burdensome alternatives[.]” Went For

It, 515 U.S. at 633 (internal quotation marks and citation omitted). Georgia does not

prohibit lawyers from soliciting close friends, relatives or most clients. Further, they may

seek professional employment from anyone who initiates the solicitation.25 Importantly,

many other modes of advertising are available to lawyers. See Shapero, 486 U.S. at 474

(“The relevant inquiry is not whether there exist potential clients whose ‘condition’

makes them susceptible to undue influence, but whether the mode of communication

poses a serious danger that lawyers will exploit any such susceptibility.”); e.g., State

Bar’s Initial Brief at 52 (“Nothing in the rules prohibit an attorney from sending potential

25
Like the rules at issue in Ohralik, Georgia’s standards do “not prohibit a lawyer
from giving unsolicited legal advice; [they] proscribe[] the acceptance of employment
resulting from such advice.” 436 U.S. at 458.
25
clients written communications inviting the potential client to contact the lawyer if the

individual would be interested in a personal presentation.”).26 Accordingly, we affirm the

district court’s judgment as to Standards 13 and 16 (only as it relates to 13), but reverse

its judgment as to Standards 12, 16 (only as it relates to 12) and 17(a).

B.

In its memorandum opinion following trial, the district court addressed the

constitutionality of several other lawyer advertising standards that Falanga and Chalker

challenged. In the first of these standards, Georgia prohibits lawyers from creating an

“unjustified expectation” about a client’s chances, and comparing their services with

those of another lawyer in a way that they cannot factually substantiate:

A lawyer shall not make any false, fraudulent, deceptive, or
misleading communication about the lawyer or the lawyer’s
services. A communication is false or misleading if it:
...
(2) is likely to create an unjustified expectation about results
the lawyer can achieve, or states or implies that the lawyer
can achieve results by means that violate the disciplinary rules
or other law; [or]
(3) compares the lawyer’s services with other lawyers’
services, unless the comparison can be factually
substantiated[.]

26
The State Bar’s general counsel testified that Standard 12 prohibits telephonic,
as well as in-person, solicitation. Falanga’s and Chalker’s motion for judgment on partial
findings on the constitutionality of Standards 12 and 16, however, concerned only in-
person solicitation, as did the district court’s judgment. Therefore, we need not decide
whether Georgia’s restriction on telephonic solicitation violates Falanga’s and Chalker’s
commercial speech rights.
26
Georgia Rules of Ct. Ann., Rules & Regulations for the Org. and Gov’t of the State Bar

of Ga., Rule 4-102, Standard 5(a)(2)-(3) (Michie 1998).27 To this aim, lawyers may not,

for example, employ the slogan “We will never lose a case!” on their letterhead:

A lawyer shall not use a firm name, professional card,
professional announcement card, office sign, letterhead,
telephone directory listing, law list, legal directory listing or
similar professional notice or designation that includes a
statement or claim that is false, fraudulent, deceptive or
misleading. A statement or claim is false and misleading if it
violates the provisions of Standard 5 [in this case, 5(a)(2) or
5(a)(3)].

Georgia Rules of Ct. Ann., Rules & Regulations for the Org. and Gov’t of the State Bar

of Ga., Rule 4-102, Standard 8 (Michie 1998).28 The district court upheld these standards

as constitutionally applied to Falanga and Chalker, concluding that: (1) as a threshold

matter, the State Bar has the absolute right to prohibit lawyers from stating or implying

that they will violate the law; (2) in any event, the State Bar has a substantial interest in

“assuring the free flow of accurate information in the market place”; (3) it presented

sufficient evidence of actual and likely miscomprehension from communications that

create an unjustified expectation of success, and requiring factual substantiation helps to

ensure accurate comparison of lawyers’ services; and (4) Standards 5(a)(2), 5(a)(3) and 8

“provide . . . reasonable means for achieving” the state’s interest.

27
State authorities may punish a lawyer who violates Standard 5(a)(2) or 5(a)(3)
with any level of discipline up to and including disbarment. See Standard 5(a); Rule 4-
102(b).
28
Unlike Standard 5(a), Standard 8 permits any level of discipline up to and
including a public reprimand, not disbarment. See Standard 8; Rule 4-102(b).
27
 Next, Georgia requires lawyers to disclaim written solicitations as

“Advertisements” patently on the envelope’s face and at the top of each page:

Written communications to a prospective client for the
purpose of obtaining professional employment shall be
plainly marked “Advertisement” on the face of the envelope
and on the top of each page of the written communication in
typesize no smaller than the largest typesize used in the body
of the letter.

Georgia Rules of Ct. Ann., Rules & Regulations for the Org. and Gov’t of the State Bar

of Ga., Rule 4-102, Standard 6(b) (Michie 1998).29 Rejecting Falanga’s and Chalker’s

constitutional challenge of this standard, the district court found that: (1) the State Bar

has a substantial interest in reducing consumer confusion and protecting consumers’

privacy; (2) “[t]he State Bar . . . provided sufficient evidence of the harm that [it] seeks to

prevent”; and (3) Standard 6(b) “is a reasonable means of preventing the harms asserted”

since “the [advertisement] designation allows the consumer to choose whether he or she is

interested in the information it contains and prevents the communication from being

misleading by omission.”

Additionally, just as written solicitations must be disclaimed as advertisements,

“[a] public communication for which a lawyer has given value must be identified as such

unless it is apparent from the context that it is such a communication.” Georgia Rules of

Ct. Ann., Rules & Regulations for the Org. and Gov’t of the State Bar of Ga., Rule 4-102,

29
State authorities may punish a lawyer who violates Standard 6(b) with any level
of discipline up to and including disbarment. See Standard 6(b); Rule 4-102(b).
28
Standard 7(a) (Michie 1998).30 The district court held that this standard does not run

afoul of the First Amendment, finding that: (1) “[t]he State Bar has a substantial interest

in reducing consumer confusion and . . . insuring the accurate flow of information”; (2)

allowing “the consumer to know whether the . . . subject of the communication was

newsworthy in its own right or . . . purchased” directly and materially serves these

interests because it “provides additional information . . . as to the impetus of the

communication”; and (3) Standard 7(a) “is a reasonable means to ensure that

communications regarding legal services are accurate and complete . . . . [and] does not

impose any undue burden on the lawyer.”

Finally, Georgia places restrictions on lawyers who wish to hold themselves out as

“specialists”:

A lawyer may communicate the fact that the lawyer does or
does not practice in particular fields of law. A lawyer shall
not state or imply that the lawyer is a specialist except as
follows:
(a) A lawyer admitted to engage in patent practice before
the United States Patent and Trademark Office may use the
designation “patent attorney” or a substantially similar
designation;
(b) A lawyer engaged in admiralty practice may use the
designation “admiralty,” “proctor in admiralty” or a
substantially similar designation; and
(c) A lawyer who has been certified as a specialist in a
particular field of law or law practice as a result of having
successfully completed a program of legal specialization
approved by the State Disciplinary Board of the State Bar of

30
State authorities may punish a lawyer who violates Standard 7(a) with any level
of discipline up to and including a public reprimand. See Standard 7(a); Rule 4-102(b).
29
 Georgia may publicly communicate the fact that he has
satisfied the requirements of that particular program.

Georgia Rules of Ct. Ann., Rules & Regulations for the Org. and Gov’t of the State Bar

of Ga., Rule 4-102, Standard 18 (Michie 1998).31 The district court sustained this

standard as well, concluding that: (1) the State Bar has a substantial interest in

“protecting consumers from misleading attorney advertising”; (2) it “demonstrated a

substantial likelihood that the use of the word ‘specialist’ could be misleading to

consumers”; and (3) because of subsection (c) and the State Bar’s representation in open

court that “it would entertain additional categories of ‘specialist’ at the request of a

particular practice group or area of law,” “Standard 18 is a reasonable means . . . to

reduce or eliminate consumer confusion.”32

Falanga and Chalker cross-appeal these rulings, arguing that the standards

impermissibly snare truthful speech, are over-inclusive, fail to target “real” harm, and/or

arbitrarily restrict legitimate advertising. The State Bar defends the district court’s

judgment, pointing to anecdotes, the study and other evidence that it introduced at trial.

Upon de novo review and due consideration, “[w]e agree with the district court’s analysis

31
State authorities may punish a lawyer who violates Standard 18 with any level
of discipline up to and including a public reprimand. See Standard 18; Rule 4-102(b).
32
The Supreme Court of Georgia has reached similar conclusions about Standard
18. See Matter of Robbins, 469 S.E.2d 191, 193-194 (Ga. 1996) (upholding the
constitutionality of Standard 18 “on its face and as applied[,]” finding “a reasonable
possibility that a significant percentage of the public reading the term ‘specialist’ in a
lawyer’s advertisement[] might be misled into thinking an attorney has been ‘certified’ or
‘designated’ or has otherwise met objective standards established by a recognized
organization”).
30
and need go no further[.]” Wilson, 132 F.3d at 1480. Each of these standards directly

and materially advance at least one substantial state interest in a reasonably proportionate

and narrowly-drawn manner. See Went For It, 515 U.S. at 624; Miller, 117 F.3d at 1382.

Accordingly, we readily affirm the district court’s judgment that Standards 5(a)(2),

5(a)(3), 6(b), 7(a), 8 and 18 are constitutional as applied to Falanga and Chalker.

III. CONCLUSION

In sum, we affirm the district court’s judgment that Standards 5(a)(2), 5(a)(3),

6(b), 7(a), 8, 13, 16 (only as it relates to 13) and 18 survive First Amendment scrutiny as

applied to Falanga and Chalker.33 We reverse, however, the district court’s judgment that

Standards 12, 16 (only as it relates to 12) and 17(a) are unconstitutional.34 We hold that

Georgia’s prohibiting lawyers and their agents from engaging in in-person, uninvited

33
Pursuant to Eleventh Circuit Rule 36-1, we affirm but do not discuss three other
issues that Falanga and Chalker present in their cross-appeal: (1) whether the district
court erred in dismissing their claim that despite the State Bar’s concession that it has not,
does not and will not enforce them, the following statutes are unconstitutional: O.C.G.A.
§§ 15-19-55, 15-19-56, 15-19-57(2) to (3), 15-19-58(2) to (4), 16-10-95(a)(3), 35-1-9 and
33-24-53; (2) whether the district court erred in failing to join Georgia’s Attorney General
or any other party necessary to litigate the constitutionality of these statutes; and (3)
whether the district court erred in denying Falanga’s and Chalker’s motions to compel
and in granting the State Bar’s motion for attorneys’ fees incurred in opposing their
motions to compel.
34
We also reverse the district court’s grant of attorneys’ fees to Falanga and
Chalker. Simply put, they are no longer the “prevailing party” with regard to Standards
12, 16 (only as it relates to 12) and 17(a). 42 U.S.C. § 1988(b) (1994); cf. Hewitt v.
Helms, 482 U.S. 755, 760 (1987) (section 1983 plaintiff was not the “prevailing party”
because, among other reasons, he “obtained no relief” from the district court and “the
Court of Appeals granted no relief of its own, declaratory or otherwise”). Consequently,
Falanga’s and Chalker’s cross-appeal concerning the amount of fees awarded is moot.
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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].” Edenfield, 507 U.S. at

774-75 (quoting Ohralik, 436 U.S. at 465-66).

AFFIRMED IN PART; REVERSED IN PART.

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