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Ohio ban on comp claimant solicitation unconstitutional

free speech

The state of Ohio’s ban on solicitation to represent a claimant during a workers compensation claim or appeal violates the free speech clause of the First Amendment, a three-judge panel of the 6th U.S. Circuit Court of Appeals in Cincinnati unanimously held on Monday.

In Bevan & Associates LPA Inc. v. Yost, workers compensation law firm Bevan & Associates LPA Inc., based in Hudson, Ohio, had for years been obtaining claimant names and addresses through public records requests to the Ohio Bureau of Workers Compensation to craft solicitations. Currently, Ohio code states that no person may solicit to represent a claimant or employer “in respect of” a workers compensation claim or appeal, or take charge of any such claim or appeal.

In 2006, the legislature modified state codes so that any information directly or indirectly identifying the address or telephone number of a claimant, regardless of whether the claimant's claim is active or closed, was not a public record. The code also stated that “no person shall solicit or obtain any such information from any such employee without first having obtained an authorization.” The change did allow for an exception for journalists who submit written requests.

After the 2006 changes, the law firm hired a journalistic service, relying on the journalist exception to gather the information for soliciting potential clients.

In 2016, after one of the journalists received a subpoena from an Ohio grand jury investigation violation of the journalist exception to the code, Bevan ceased its advertising. It filed a lawsuit against Ohio attorney general David Yost in the U.S. District Court for the Southern District of Ohio seeking declaratory judgment that the code was unconstitutional. The district court upheld the constitutionality of the code banning solicitation.

Although the district court acknowledged that Ohio statutes could be construed as to ban all solicitation, it held that it would interpret the solicitation ban as “applicable only to solicitation based on unlawfully obtained claimant information” and that the ban was not on speech, but on the conduct of unlawfully obtaining claimant information to engage in solicitation.

Bevan appealed the decision, and the 8th U.S. Circuit Court of Appeals reversed and remanded the district court’s decision.

Under the plain meaning of the language, the appellate court held that the state has effectively “prohibited all solicitation, whether oral or written, by any person to represent a party with respect to an Ohio workers’ compensation claim or appeal,” and that the ban violates the First Amendment.

Although the attorney general argued that the language in the statute was to protect claimant information collected by the Ohio Bureau of Workers Compensation from being obtained in an unlawful manner, the appellate court held that the language in the statue was “unambiguous” and does not admit “any alternative interpretation aside from being a total ban on solicitation.”

The court noted that the words in the solicitation ban “make no distinction as to how the person doing the soliciting learned of the claimant's information” but bans all solicitation regardless of where or how the claimant's information was obtained. As a result, the appellate court held that the prohibition was “repugnant to the free speech clause of the First Amendment” and reversed the decision and remanded with instructions to enter summary judgment in favor of Bevan.

Attorneys for Bevan declined to comment on the decision.





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