Sixth Circuit Strikes Down Workers’ Compensation Claimant Solicitation Law

I read frequently about legal opinions interpreting various laws governing the employer-employee relationship.  Less often, I encounter one concerning the employment lawyer-client relationship.  So when I came across a recent case, Bevan & Associates, LPA, Inc., et al. v Yost, et al., No. 18-3262 (6th Cir. 7/8/19), in which the Sixth Circuit discussed the constitutionality of a state law banning solicitation of workers’ compensation claims and appeals, I was curious.

Under the Ohio law at issue (§ 4123.88), “[n]o person shall directly or indirectly solicit authority . . . from a [workers’ compensation] claimant or employer to take charge of, or represent the claimant or employer in respect of, any claim or appeal which is or may be filed with the [Ohio Bureau of Workers’ Compensation (“the Bureau”)].”  Ohio Rev. Code § 4123.88(A).   Since 2006, the law has also restricted the public’s ability to obtain the personal information (such as names and addresses) of workers’ compensation claimants.

Bevan & Associates (“Bevan”) is a law firm that represents workers’ compensation claimants.  As part of a marketing campaign — and despite the statutory solicitation ban — Bevan obtained claimant information from the Bureau and sent targeted, written solicitations to claimants advising them that they may be entitled to additional compensation from the Bureau.  As a result of an investigation into the legality of the advertisements, Bevan stopped sending the letters and sued for declaratory judgment asserting that § 4123.88 is unconstitutional.

The district court interpreted § 4123.88 as banning only solicitation based on claimant information that was unlawfully obtained and denied Bevan relief.

On appeal, the Sixth Circuit disagreed.  It found that the statutory language is an unambiguous total ban on solicitation.  Rather than specifying that only solicitation based on unlawfully obtained information is banned, the language in the statute is overly broad and bars solicitation even when based on information that may be legitimately obtained (such as observing a claimant walking with a limp).

Acknowledging the State of Ohio’s substantial interest in protecting workers’ compensation claimant privacy, the Court nevertheless found that the total ban on solicitation went too far to be constitutional.  Moreover, Bevan’s letters to claimants, although targeted to specific individuals, were no more invasive to privacy than any similar letter mailed out to the public at large.  As such, Bevan’s letters were protected by the First Amendment.

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