Constitutionality of In-Person Solicitation

Nearly 30 years ago, John L. Carey and William O. Doherty, in Ethical Standards of Accounting Profession, confidently asserted that the general prohibition against advertising is accepted today without much question. To be sure, there is nothing illegal or immoral about advertising as such, but it is almost universally regarded as unprofessional. Carey and Doherty argued there were many sound reasons to prohibit advertising. For example, contrary to common belief, young or unestablished CPA would not benefit from it because the well-established firms could afford to advertise on a scale that would throw young practitioner wholly in shade. For many years, AICPA Code of Professional Ethics generally prohibited advertising without many exceptions. Currently, Rule 502--Advertising and Other Forms of Solicitation of AICPA code generally permits advertising and other forms of solicitation with qualification it not be false, misleading or deceptive. However, some states and boards of accountancy have taken a more restrictive view, prohibiting direct, in-person, solicitation of a specific potential client, including uninvited in-person visits or conversations or telephone calls to a specific potential (Florida Statutes [1989] sec. 473.323[1][1]). Recently, U.S. Court of Appeals for Eleventh Circuit and District Court of Appeals of Florida were asked to determine constitutionality of that state's prohibition. The two courts, confronting virtually identical situations and applying same legal principles, reached diametrically opposite conclusions. The issue was resolved by U.S. Supreme Court. THE FLORIDA CONFLICT In State of Florida v. Rampell, district court of appeals reasoned that the State has an interest in preventing |vexatious' conduct which may include solicitations intruding on right of privacy of both individuals and businesses in State. Whether solicitation is by a lawyer or a CPA, pressure can be exerted on a potential client to make a hasty and uninformed decision. While CPAs may not be trained in art of persuasion, they are trained in intricacies of taxes and financial statements [that] even most sophisticated client finds confusing.... It is possibility of harmful solicitation and knowledge that--whether by door-to-door salesman [sic], attorney or CPA--all in-person solicitation is particularly susceptible to abuse [that] allows State to regulate such conduct. In second Florida case, Eleventh Circuit Court, applying same standards, found in-person solicitation statute unconstitutional (Fane v. Edenfield, 945 F.2d 1514 [11th Cir. 1991]). Stating blanket prohibitions on commercial speech are disfavored, it added that possibility isolated abuses or mistakes may occur did not justify a ban on a type of commercial speech, and that in-person solicitation by CPAs was lawful and not misleading. It said Florida had a substantial interest in regulating accounting profession but a ban on in-person solicitation did not directly advance that interest and found that, in any event, statute was too broad and unduly restrictive. The court said state board of accountancy had offered no evidence a CPA was likely to engage in dishonest or oppressive conduct during a solicitation. Although prohibitions against in-person solicitation by lawyers and funeral home directors have been upheld in other cases, court in this case said that CPAs did not have opportunity to intrude in times of tragedy and great emotional distress. …