July 9, 2019 / 7:23 PM / 8 days ago

6th Circuit: Ohio can’t bar lawyers from advertising to workers' comp claimants

(Reuters) - In 2006, Ohio amended its workers' compensation law to block the public release of the names and addresses of workers claiming on-the-job-injuries. The change in the law posed a problem for the plaintiffs firm Bevan & Associates. Before 2006, as the firm recounted in a brief to the 6th U.S. Circuit Court of Appeals, Bevan would submit public records requests to the Ohio Bureau of Workers’ Compensation to obtain claimants’ contact information and would then send direct mail solicitations and advertisements to those claimants, urging them to hire the firm. After 2006, Bevan could not get the names and addresses of potential workers' comp clients directly from the state.

But the 2006 law included a loophole: Journalists were still allowed to request information about workers’ comp claimants from the state agency that oversees the cases. So the Bevan firm hired a former client with journalism credentials and a service called Capital Publishing to ask for the records it could no longer obtain on its own. Using the contact information it received from Capital Publishing and its onetime client, Bevans sent mailings to prospective workers’ comp clients, just as it had before the 2006 rule change.

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The firm believed it was not doing anything wrong, according to its counsel, Ralph Breitfeller of Kegler Brown Hill & Ritter. In February 2016, however, a grand jury investigating fraud in the Ohio workers’ compensation system subpoenaed Capital Publishing and Bevans’ former client, seeking information about their relationship with the law firm.

The state’s rationale: Ohio’s workers’ compensation law prohibits anyone from soliciting to represent claimants. The law said that violations of the bar on solicitation are a misdemeanor punishable by 90 days in jail.

The Bevan firm's response was to file a suit in federal court in Columbus to invalidate the bar on solicitation as unconstitutional under the First Amendment’s Free Speech Clause. And on Monday, the firm was vindicated at the 6th Circuit. The appeals court held in Bevan & Associates v. Yost that Ohio’s law precluding all solicitation of workers' comp claimants is a violation of the First Amendment under the U.S. Supreme Court’s 1988 precedent in Shapero v. Kentucky Bar Association.

In the Shapero case, explained Judge John Bush for a panel that included Judges Eugene Siler and Deborah Cook, the Supreme Court struck down a Kentucky rule barring lawyers from sending targeted mailings to potential clients known to be facing particular legal problems. (The case involved a lawyer’s letters to homeowners who had been sued in foreclosure proceedings.) The court held in Shapero that state bar associations can regulate or even ban lawyers who attempt to solicit clients in person, but that written solicitations are protected under the First Amendment.

Bevan’s mailings to workers’ comp claimants are similarly covered, the 6th Circuit said. “As in Shapero,” Judge Bush wrote, “the state’s interest here in protecting solicitee privacy does not extend far enough to justify prohibiting the solicitation.” Ohio’s concern for the confidentiality of workers’ comp claims, the court said, “cannot outweigh Bevan’s right to engage in commercial speech.”

The Ohio Attorney General’s office, which defended the statute, had argued that the law’s prohibition on solicitation was not a total ban, but just a bar on using improperly obtained information. The trial judge who heard the case, U.S. District Judge Algenon Marbley of Columbus, adopted that interpretation in a decision granting summary judgment to the state. The prohibition, Judge Marbley found, was not a ban on speech but on conduct.

The 6th Circuit, however, said the state’s reading of the workers’ comp statute didn’t line up with the text of the statute. The law does not contain restrictions on the application of the ban on solicitation, the appeals court said. The text is unambiguous, the opinion said, so there’s no way to avoid the constitutional question.

Bevan counsel Breitfeller told me the state’s position clashed with the legislative history of the workers’ compensation statute. The language barring solicitation dates back to the 1931 version of the law and was unchanged when the state legislation adopted the 2006 amendments restricting access to claimants’ contact information.

Breitfeller also said that even before the firm’s win at the 6th Circuit, Bevan was off the hook for improper solicitation: The state informed the firm last summer that the grand jury investigation had closed with no charges.

A spokesman for Ohio AG Dave Yost said in an email that the AG is considering its next steps in the case. 

This story has been updated to include comment from the Ohio AG.

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