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Ohio Ban on Workers' Comp Client Solicitation Is Unconstitutional

pile of letters and postal parcel
By Christopher Coble, Esq. on July 22, 2019 3:00 PM

There are all kinds of ethical and state bar-related restrictions on how lawyers can and can't solicit clients. And, on top of those, there may be state statutes barring solicitation in certain situations. For instance, Ohio law states that "[n]o person shall directly or indirectly solicit authority" to "represent the claimant or employer in respect of" a workers' compensation "claim or appeal."

A Cleveland area law firm, however, challenged the law on First Amendments grounds, and won. The Sixth Circuit Court of Appeals recently struck down the solicitation ban, calling it "repugnant to the free speech clause of the First Amendment."

Blanket Ban

According to the suit, Bevan & Associates would rely on public records requests and, later, journalistic sources to obtain names and addresses of workers' compensation claimants. The firm would then send direct mail advertisements to these potential clients, saying they may be "entitled to an additional CASH AWARD for your injury that the Ohio Bureau of Workers Compensation (BWC) has not told you about!" The letters also included a disclaimer: "This ADVERTISING MATERIAL is not intended to be a SOLICITATION under Ohio's Rules governing lawyers, as it is unknown whether the recipient is in need of legal services."

When one of Bevan's journalist sources received a grand jury subpoena regarding a possible violation of Ohio's worker's comp solicitation ban, the firm sued, claiming the statute was unconstitutional. A district court ruled in favor of the state, viewing the law as a ban on conduct, rather than speech, reading its prohibitions as applying to "unlawfully obtained claimant information to engage in solicitation. But the Sixth Circuit disagreed.

Unambiguous Problems

"The problem with Ohio's argument is that the statutory text at issue is unambiguous," Judge John Bush wrote for the court. "Section 4123.88(A), as it is currently written, works a complete ban on all in-person as well as written solicitation, conducted by any person, of workers' compensation claimants and thus is incompatible with the First Amendment."

The Sixth Circuit was also unconcerned with how Bevan & Associates obtained their advertising list. "The words in the solicitation ban make no distinction as to how the person doing the soliciting learned of the claimant's information," it noted, "by its plain terms, the statute bans all solicitation regardless of where or how the claimant's information was obtained."

So, for now, practitioners in Ohio (and presumably Kentucky, Michigan, and Tennessee as well) can continue contacting potential workers' comp clients. But they may still want to be careful about how they're obtaining that info.

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