United States District Court, S.D. Ohio, Eastern Division
Jolson, Magistrate Judge
OPINION AND ORDER ON MOTIONS FOR SUMMARY
ALGENON L. MARBLEY, UNITED STATES DISTRICT JUDGE
matter is before the Court on the Motions for Summary
Judgment filed by Plaintiffs (ECF No. 38), Defendant Ohio
Attorney General Mike DeWine (ECF No. 46), and Defendants
Thomas H. Bainbridge, Jodie M. Taylor, and Karen L. Gillmor,
in their official capacities as commissioners of the
Industrial Commission of Ohio, and Sarah Morrison, in her
official capacity as Administrator of the Ohio Bureau of
Workers' Compensation (collectively, “Agency
Defendants”) (ECF No. 47).
reasons that follow, the Court DENIES
Plaintiffs' Motion for Summary Judgment,
GRANTS Defendant Ohio Attorney General's
Motion for Summary Judgment, and GRANTS the
Agency Defendants' Motion for Summary Judgment.
Ohio law regulating attorney solicitation of workers'
compensation claimants provides, in relevant part:
No person shall directly or indirectly solicit authority, or
pay or give anything of value to another person to solicit
authority, or accept or receive pay or anything of value from
another person for soliciting authority, from a claimant or
employer to take charge of, or represent the claimant or
employer in respect of, any claim or appeal which is or may
be filed with the bureau or commission.
Ohio Rev. Code § 4123.88(A). It also provides that claim
files are “not public records, ” and are kept
“for the exclusive use and information of the
commission and the bureau in the discharge of their official
duties[.]” Ohio Rev. Code §§ 4123.88(B)-(C).
An accompanying regulation, Ohio Admin. Code 4121-2-01(B),
provides in relevant part:
No person who solicits or who causes claims to be solicited
shall be allowed to practice or represent parties before the
industrial commission or the bureau . . . . No person other
than an attorney in good standing may render advice or
services in the preparation or presentation of a claim for
compensation arising under the workers' compensation laws
of Ohio if a fee for such advice or services is to be
received from or charged against the one having such claim.
Ohio Admin. Code 4121-2-01(B).
contend that this regulatory scheme creates a blanket ban on
solicitation- meaning, in their view, all advertising-by
workers' compensation attorneys that is impermissible
under the First Amendment. (ECF No. 38 at 1). Defendants
contend that the statute neither prohibits solicitation nor
advertising; instead, it maintains the privacy of
workers' compensation claimants by regulating access to
the flow of government-held information. (ECF No. 46 at 1).
because the statute and its accompanying regulations purely
target noncommunicative conduct, not speech, Plaintiffs'
First Amendment challenge cannot succeed.
following facts are not in dispute. Plaintiffs are a law firm
and its principals practicing in the field of workers'
compensation and Social Security disability benefits. (ECF
No. 1 at ¶¶ 6-8, 25-28). They frequently use
targeted mailings to promote their services to potential
workers' compensation clients. (ECF No. 1 at ¶¶
21-23). They compile the list of mailing recipients by
collecting the addresses and phone numbers of workers
compensation claimants from a journalist-an entity entitled
under Ohio Revised Code § 4123.88(D) to receive such
records. (Id. at ¶ 21.) Plaintiffs ...