Here is Law.com's description of a lawyer discipline case currently pending in New Jersey:
New Jersey's Committee on Attorney Advertising held a hearing Monday to decide whether legal ethics rules were violated by the placing of a lawyer's advertising leaflet on the windshield of a rape victim's car.
The victim, known in court papers as K.D., claims an orange flyer from Fred Zemel's Newark, N.J., firm appeared on her car on or about Feb. 19, 2007 -- two months after the sexual assault occurred. It touted the firm's services to anyone who had been the victim of "rape and assault in your building or apartment." No other car parked nearby had such a flyer on it, leading K.D. to assume the flyer was directed at her, she says.
Among other possible violations, the complaint alleges that the lawyers violated New Jersey Rule 7.3(b)(1), which bars communicating with someone whose physical, emotional or mental state might impair the decision to hire a lawyer. There is a factual dispute as to whether the firm directly targeted K.D. or whether the flyers were randomly distributed, but assuming the worst case scenario (that the firm targeted K.D. specifically), wouldn't punishment under Rule 7.3(b)(1) be unconstitutional? The Court's Went for It decision permits some restrictions on direct mail solicitations, but the New Jersey rule contains no time limitations. It essentially places an ongoing restriction on advertising directed at victims of particularly traumatic crimes.
I personally find the flyer to be in horribly bad taste, and I would be surprised to learn that it is an effective marketing strategy. But if New Jersey's Committee on Attorney Advertising imposes discipline for a violation of Rule 7.3(b)(1) (which has no Model Rules counterpart), I'm having trouble seeing how punishment would be constitutional. Can anyone make the case that it would be?