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Shapero v. Kentucky Bar Association

Supreme Court of Kentucky · Constitutional Law

Constitutional Lawmotion for final judgmentlaw of the caseUnited States Supreme Court reversalattorney advertisingtargeted direct mailEthics Opinion E-310Advertising Commission

Facts

The petitioner asked the court to vacate the portion of its earlier 1986 decision that adopted Model Rule 7.3 as the law of Kentucky. He argued in light of the United States Supreme Court's 1988 opinion reversing the Kentucky court's approval of Ethics Opinion E-310. He also asked the court to approve his targeted direct mail advertisement or remand that approval question to the Kentucky Attorneys Advertising Commission. However, he had sought review in the Kentucky court only of Ethics Opinion E-310 and had not appealed the Advertising Commission's disapproval of his submitted letter under SCR 3.135(8).

Issue

Whether the Supreme Court of Kentucky should enter an order setting aside part of its earlier decision adopting Model Rule 7.3 and whether it should approve, or remand for reconsideration of, the petitioner's targeted direct mail advertisement. Also at issue was whether the advertisement-approval question was properly before the court when the petitioner had not taken the prescribed appeal from the Advertising Commission's disapproval.

Rule

When a controlling opinion of the United States Supreme Court already governs the matter, further action by the state court is unnecessary and inappropriate. In addition, a court will not approve or remand an advertisement-approval issue that has never been before it because the party failed to appeal the Advertising Commission's disapproval through the procedure provided in SCR 3.135(8).

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Ohio, the state supreme court had previously upheld a bar ethics advisory opinion restricting certain lawyer mailings. After the United States Supreme Court reversed that ruling, attorney Lena Ortiz filed a motion asking the Ohio court to enter a new order formally vacating the portion of its earlier opinion that had adopted the restriction as state law.

How should the Ohio Supreme Court rule on Lena's motion?

Explanation. The majority opinion states that once the United States Supreme Court has reversed the state court's approval of the ethics opinion, that federal decision is already the law in the matter. On that reasoning, an additional state-court order setting aside part of the earlier decision is unnecessary and inappropriate. (Derived from Shapero v. Kentucky Bar Association (n.d.).)