Friday, April 9, 2010

Federal Judge Strikes Down Waiting Period For Sending Out Targeted Mail to Arrestees

In a case that has not received a lot of attention, the U.S. District Court for the Western District of Texas ruled about a week ago that a Texas statute that prohibits lawyers from sending written solicitations to potential clients in criminal or traffic matters within 30 days of their arrest or summons violates the First Amendment. The case is McKinley v. Abbott.

As most readers of this blog probably remember, the US Supreme Court held in Florida Bar v. Went For It Inc., 515 U.S. 618 (1995), that a ban on solicitations through targeted mail to potential personal injury or wrongful death clients within 30 days of their accidents was constitutional. In McKinley, though, the court distinguished Went For It based on the distinction between accident victims and criminal defendants. The court concluded that the challenged Texas statute “neither directly or materially advances a substantial state interest...”

This is not the first time a court reaches this conclusion. The court of appeals for the fourth circuit reached a similar result in Ficker v. Curran, 119 F.3d 1150 (4th Cir. 1997).

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