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Curb on 'ambulance-chasing' lawyers is upheld


WASHINGTON -- Agreeing to let states take bold action to curb the image of lawyers as "ambulance-chasers," the Supreme Court upheld yesterday a state rule that requires attorneys to stay away from victims of accidents or disasters for 30 days.

The 5-4 decision, in a major test case from Florida, produced an angry division among the justices, with the dissenters accusing the majority of embracing "censorship, pure and simple."

The ruling dealt with a Florida bar association ban on letters from lawyers to victims of personal tragedy or to their relatives to solicit business during a monthlong "blackout period," as the court majority called it.

Together with a 1978 court ruling permitting states to forbid lawyers to seek business by personally contacting a potential client, the ruling against mail solicitation essentially bars contact by attorneys with victims until after the 30-day blackout.

Nothing in yesterday's ruling prevents victims or their relatives from seeking a lawyer on their own.

All 50 states place some limits on direct-mail solicitation by attorneys. But Florida and Texas apparently have gone the furthest, adopting temporary blackouts on lawyers' solicitation of business in cases of personal injury or death. Lower courts had struck down both measures.

In Maryland, professional rules for lawyers bar direct-mail contact by an attorney who uses "coercion, duress or harassment," and direct-mail contact by a lawyer with a person who has "indicated a desire not to get letters" or to someone the lawyer knows could not exercise "reasonable judgment in hiring a lawyer."

Yesterday's outcome was a surprise, especially because the lawyer who had defended the Florida rule at a Supreme Court hearing in January had run into ridicule and a wave of sardonic jokes by the justices about lawyers' image for ambulance-chasing. Since then, a five-justice majority has emerged to join in Justice Sandra Day O'Connor's opinion upholding the law's constitutionality.

Another element of surprise was that one of the court's more liberal members, Justice Stephen G. Breyer, joined four conservatives in rejecting the free-speech challenge to Florida's law.

The ruling marked the first time that the court had invoked potential clients' need for privacy as a reason for upholding a state limit on lawyer solicitation that is truthful, rather than false or deceptive.

"The state's interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society," Justice O'Connor wrote. In the days after an accident or disaster, she wrote, a lawyer's letter may be an intrusion.

Aside from victims' need to be shielded from lawyers at a time when "wounds are still open," the majority said, the Florida rule helps counter the poor image that lawyers foster when they try to drum up business from victims and produce "outrage and irritation" among the public.

Justice O'Connor said distress over such contacts by lawyers had led Floridians "to lose respect for the legal profession" and that the state must be free to try to offset that.

The majority stressed that the direct-mail ban is limited to 30 days and that lawyers have ample alternative ways to advertise their services to the public. Such methods include newspapers, broadcast, phone book and billboard advertising.

The O'Connor opinion was supported by Chief Justice William H. Rehnquist and Justices Breyer, Antonin Scalia and Clarence Thomas.

Justice Anthony M. Kennedy, writing for the dissenters, said the ruling was "a serious departure" from a series of Supreme Court decisions dating to 1977, most of which expanded the rights of lawyers to advertise and promote their services.

The ruling reflects the majority's confidence that it "knows best what is best for the bar and its clients," Justice Kennedy said, adding, "Self-assurance has always been the hallmark of the censor."

The dissenting opinion noted that for the first time since 1977, "the court now orders a major retreat" from constitutional protection for commercial expression "in order to shield its own profession from public criticism."

Justice Kennedy also wrote that the 30-day blackout rule keeps accident victims away from lawyers at the very time when "sound legal advice may be necessary and most urgent," the period immediately after an accident or disaster in which the victims may have suffered legal wrongs.

Joining in the dissent were Justices Ruth Bader Ginsburg, David H. Souter and John Paul Stevens.

The court issued the decision as it moved toward clearing its docket for the summer recess, which is likely to begin next week.

In another ruling, the court upheld, by an 8-1 vote, the criminal conviction of U.S. District Judge Robert P. Aguilar, for telling a relative that the FBI might be tapping the relative's telephone.

That conviction is expected to lead to impeachment proceedings in Congress to force the in San Jose, Calif., judge off the bench.

The conviction itself is not sufficient to remove him.

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