774
Opinion of the Court
We reject the Board's argument and hold that, as applied in this context, the solicitation ban cannot be justified as a prophylactic rule. Ohralik does not stand for the proposition that blanket bans on personal solicitation by all types of professionals are constitutional in all circumstances. Because "the distinctions, historical and functional, between professions, may require consideration of quite different factors," Virginia State Bd. of Pharmacy, supra, at 773, n. 25, the constitutionality of a ban on personal solicitation will depend upon the identity of the parties and the precise circumstances of the solicitation. Later cases have made this clear, explaining that Ohralik's holding was narrow and depended upon certain "unique features of in-person solicitation by lawyers" that were present in the circumstances of that case. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S., at 641; see also Shapero v. Kentucky Bar Assn., 486 U. S. 466, 472 (1988).
Ohralik was a challenge to the application of Ohio's ban on attorney solicitation and held only that a State Bar "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." Ohralik, 436 U. S., at 449. While Ohralik discusses the generic hazards of personal solicitation, see id., at 464-466, the opinion made clear that a preventative rule was justified only in situations "inherently conducive to overreaching and other forms of misconduct." Id., at 464; cf. In re R. M. J., 455 U. S., at 203 (advertising may be banned outright only if it is actually or inherently misleading). The Court in Ohralik explained why the case before it met this standard:
"[T]he potential for overreaching is significantly greater when a lawyer, a professional trained in the art of persuasion, personally solicits an unsophisticated, injured, or distressed lay person. Such an individual may place his trust in a lawyer, regardless of the latter's qualifications or the individual's actual need for legal rep-
Page: Index Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 NextLast modified: October 4, 2007