Bevan & Associates, LPA, Inc. v. DeWine, 2:16-cv-00746

Background

Plaintiffs Bevan & Associates (a law firm and principals) send targeted mail advertising legal services to Ohio workers’ compensation claimants using claimant contact information obtained from a journalist who may access certain Commission files under Ohio R.C. § 4123.88(D).
Plaintiffs attached sample mailings that promote legal help for workers’ compensation and Social Security disability claims and include a disclaimer that the material is advertising, not solicitation under Ohio rules.
Ohio Rev. Code § 4123.88(A) criminalizes solicitation of workers’ compensation claimants for representation; Ohio Admin. Code 4121-2-01(B) bars those who solicit from practicing before the Industrial Commission/Bureau.
The Ohio Attorney General served grand jury subpoenas on Plaintiffs’ business partners (the journalist, mailing company, and an affiliate), prompting Plaintiffs to allege a credible threat of prosecution and to curtail their mailings.
Plaintiffs sued under 28 U.S.C. § 2201 and 42 U.S.C. § 1983 seeking declaratory and injunctive relief, alleging facial and as-applied First Amendment violations; they later abandoned monetary damages claims.
The Court considered Defendants’ motions to dismiss (standing and failure to state a claim) and denied both motions.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing (pre-enforcement credible threat)	Bevan alleges an objective chill: they intend to continue mailings and grand jury subpoenas to their partners show a credible threat of prosecution under § 4123.88(A).	Subpoenas to third parties are speculative and do not show a concrete, traceable threat to Bevan; mere subjective chill is insufficient.	Court: Plaintiffs have standing — subpoenas + statutory criminal penalties create a credible threat of prosecution; allegations must be accepted on the pleadings.
Failure to state a First Amendment claim	§ 4123.88(A) and 4121-2-01(B) broadly prohibit solicitation of claimants and thus regulate commercial speech (lawyer advertising), implicating the First Amendment.	The provisions merely regulate access to and use of government-held information and do not implicate protected speech because they limit state-provided records.	Court: Plaintiffs state a claim — the solicitation bans target speech (commercial lawyer advertising) and are thus subject to First Amendment analysis.
Attorney General as proper defendant (Ex parte Young)	The AG has enforcement duties under Ohio law and the subpoenas demonstrate a threatened enforcement; AG may be enjoined under Ex parte Young.	The Declaratory Judgment Act requires notice but not party joinder; subpoenas to third parties do not show AG is about to enforce against Plaintiffs.	Court: AG is a proper defendant — he has a connection to enforcement and threatened enforcement (subpoenas) suffices for Ex parte Young given Plaintiffs’ standing.

Key Cases Cited

Shapero v. Kentucky Bar Ass’n, 486 U.S. 466 (1988) (recognizes lawyer advertising as protected commercial speech)
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (1979) (pre-enforcement challenge permissible where fear of prosecution is not imaginary)
McGlone v. Bell, 681 F.3d 718 (6th Cir. 2012) (pre-enforcement objective chill/credible threat framework)
McKay v. Federspiel, 823 F.3d 862 (6th Cir. 2016) (distinguishes types of credible-threat evidence in First Amendment contexts)
Morrison v. Bd. of Educ. of Boyd Cty., 521 F.3d 602 (6th Cir. 2008) (no credible threat when record is silent on enforcement and policy lacked criminal penalties)
Russell v. Lundergan-Grimes, 784 F.3d 1037 (6th Cir. 2015) (standing plus threatened enforcement can satisfy Ex parte Young connection)
Ex parte Young, 209 U.S. 123 (1908) (permits prospective injunctive relief against state officials to stop enforcement of unconstitutional state law)
United States v. Supreme Court of N.M., 839 F.3d 888 (10th Cir. 2016) (pre-enforcement prosecution threat found credible where state disciplinary rule applied and prosecution was possible)