Ohralik v. Ohio State Bar Association Motion for Leave to File and Brief of Amici Curiae

    IN THE

Supreme Court of the United States
OCTOBER TERM, 1977

No. 76-1650

ALBERT OHRALIK,
Appellant,

v.

OHIO STATE BAR ASSOCIATION,
Appellee.

No. 77-56

IN THE MATTER OF EDNA SMITH,
Appellant.

MOTION FOR LEAVE TO FILE 
AND

BRIEF OF AMICI CURIAE PUBLIC CITIZEN AND 
THE NATIONAL RESOURCE CENTER FOR CONSUMERS OF 

LEGAL SERVICES URGING THE COURT TO 
SET ASIDE THE DISCIPLINARY ORDERS BELOW

GIRARDEAU A. SPANN 
ALAN B. MORRISON 

Suite 700
2000 P Street, N.W. 
Washington, D.C. 20036 
(202) 785-3704

November 17, 1977 Attorneys for Amici Curiae

THE CASILLAS PRESS, INC -1717  K Street, N. W.-WMhingtcm. O. C.-22S-1220



TABLE OF CONTENTS

TABLE OF AUTHORITIES........................................................... ii

MOTION FOR LEAVE TO FILE A BRIEF
AMICI C U R IA E .....................................................................  vii

INTEREST OF A M IC I ...........................................................  vii

BRIEF OF AMICI C U R IA E ....................................................... 1

INTRODUCTION.....................................................................  2

CONSTITUTIONAL AND ETHICAL
PROVISIONS IN V O L V E D .................................................  2

QUESTION PRESENTED. .    4

STATEMENT OF THE CASES .................................................. 5

A. STATEMENT OF FACTS IN NO. 76-1650 . . . .  5

B. STATEMENT OF FACTS IN NO. 77-56 ........................ 10

SUMMARY OF A R G U M E N T ................................................  16

ARGUMENT ..............................................................................  18

I. THE PRESENT SOLICITATION RULES ARE
SERIOUSLY IN NEED OF MODIFICATION . . 18

II. THE SOLICITATION RULES UNDER WHICH 
APPELLANTS WERE DISCIPLINED VIOLATE
THE FIRST AMENDMENT................................... 22

A. FIRST AMENDMENT PROTECTIONS APPLY 
TO COMMUNICATIONS THAT ARE NOW 
PROHIBITED...............................................................  22

(i)

Page



(ii)

B. CONSUMERS HAVE A SUBSTANTIAL INTER­
EST IN RECEIVING INFORMATION CON­
CERNING THEIR PARTICULAR RIGHTS THAT 
GREATLY OUTWEIGHS ANY INTEREST THAT 
THE BAR HAS IN SUPPRESSING ALL SOLICI­
TATIONS ................................................................. 26

C. MANY NARROWLY DRAWN, LESS RESTRIC­
TIVE ALTERNATIVES ARE AVAILABLE
TO GUARD AGAINST ANY ABUSES THAT 
MIGHT RESULT FROM SOLICITATION . . .  32

III. THE CONDUCT OF EACH APPELLANT IS
PROTECTED BY THE FIRST AMENDMENT . . .  36

CONCLUSION..........................................................................  38

TABLE OF AUTHORITIES

Cases:

Page

Bates v. State Bar o f  Arizona,
45 U.S.L.W. 4895 (U.S. June 27, 1 9 7 7 ) ....................  passim

Bigelow v. Virginia,
421 U.S. 8 0 9 ( 1 9 7 5 ) ............................................................ 26

Broadrickv. Oklahoma,
413 U.S. 601 ( 1 9 7 3 ) ....................................................... 17,25

Brotherhood o f  R. Trainmen v. Virginia,
377 U.S. 1 ( 1 9 6 4 ) ................................................................. 29

California Motor Transport Co. v. Trucking
Unlimited, 404 U.S. 508 (1972)............................................. 28

Doe v. Pierce,
No. 74-475 (D.S.C. 1974)............................................. 12, 13, 15



16, 24-25
Dunn v. Blumstein,

405 U.S. 330(1972) . .

Goldfarh v. Virginia State Bar,
421 U.S. 773(1975) . .

Kleindienst v. Mandel,
408 U.S. 753(1972) . .

Lamont v. Postmaster General,
381 U.S. 301 ( 1 9 6 5 ) .................................................  16,22,

Linmark Associates, Inc. v. Willingboro,
431 U.S. 85 (1 9 7 7 ) ................................................................

Martin v. Struthers,
319 U.S. 141 ( 1 9 4 3 ) ........................ ..................................

NAACPv. Button,
371 U.S. 4 1 5 ( 1 9 6 3 ) .............................. 16,17,24,29,33,

Patterson Drug Company v. Kingery,
305 F. Supp. 821 (W.D.Va. 1969) (three-judge court) . .

Shelton v. Tucker,
364 U.S. 479(1960) . .............................................  16-17,

In Re Solomen Cohn, New York Law Journal,
Feb. 19, 1974, p. 2, cols. 6 - 7 ............................................ 18,

Stanley v. Georgia,
394 U.S. 5 5 7 ( 1 9 6 9 ) ...........................................................

Talley v. California,
362 U.S. 6 0 (1 9 6 0 ) ...........................................................  17,

United Mine Workers v. Illinois Bar Ass’n.,
389 U.S. 2 1 7 ( 1 9 6 7 ) ...........................................................

20

22

24

23

22

37

22

25

19

22

25

29



United States v. O’Brien,
391 U.S. 3 6 7 ( 1 9 6 8 ) ............................................................ 25

United Transportation Union v. State Bar
o f Michigan, 401 U.S. 576 ( 1 9 7 1 ) ........................................  28-29

Virginia State Board o f  Pharmacy v. Virginia
Citizens Consumer Council, 425 U.S. 748 (1976) . 22 ,23,24,33

Constitutional and Ethical Provisions:

United States Constitution:

First A m e n d m e n t.................................................................passim

Code of Professional Responsibility:

Canon 2 ..................................................................................... 18, 36

Canon 5   27

Ethical Considerations:

EC 2 - 1 .............................    19
EC 2 - 2 ...........................................................................19, 33
EC 2 - 3 ...............................................................................  20
EC 2 - 4 ...............................................................................  20
EC 2-16 ...............................................................................  20
EC 2-25 ...............................................................................  20
EC 2-27 ................................................................................ 27
EC 8-1 ................................................................................  20
EC 8 - 2 ................................................................................ 20
EC 8 - 3 ...............................................................................  20

Disciplinary Rules:

DR 2 - 1 0 3 ..........................................................................  2
DR 2-1 0 3 (A ).................................................................2, 5, 8

(iv)

Page



DR 2-1 0 3 (D )...................................................... 2, 10, 13, 29
DR 2-103(D)(5)(a)-(d)...................................................... 2-3,29
DR 2-104 .......................................................................4 ,32,33
DR 2-1 0 4 (A )...................................................... 4, 5 ,8 , 10, 13
DR 2-104(A )(1).............................................................4 ,32,33
DR 2 - 1 0 6 ................................................................   27

Other Authorities:

Freedman, Monroe H., Lawyers’ Ethics In An Adversary 
System, Bobbs-Merrill ( 1 9 7 5 ) .............................. 19





(Vii)

IN THE

Supreme Court of the United States
OCTOBER TERM, 1977

No. 76-1650

ALBERT OHRAL1K,
Appellant,

v.
OHIO STATE BAR ASSOCIATION,

Appellee.

No. 77-56

IN THE MATTER OF EDNA SMITH,
Appellant.

MOTION OF PUBLIC CITIZEN AND THE NATIONAL RESOURCE 
CENTER FOR CONSUMERS OF LEGAL SERVICES FOR LEAVE 
TO FILE A BRIEF AMICI CURIAE URGING THE COURT TO SET 

ASIDE THE DISCIPLINARY ORDERS BELOW

Public Citizen and the National Resource Center for Con­
sumers of Legal Services hereby move the Court for leave 
to file the accompanying brief amici curiae urging the Court 
to set aside the disciplinary orders entered below in the above- 
entitled actions.

INTERESTS OF AMICI

Amici are two broad based consumer-oriented organiza­
tions whose interests will be directly affected by the dis­
position of the present proceedings. Each amicus has a



(viii)

significant organizational interest in improving the quality, 
availability and delivery of legal services, and each repre­
sents the interests that its individual members and support­
ers have in obtaining important information about the law­
yers who are available to represent them. Moreover, amici 
are the two organizations that this Court granted leave to 
file a prior amicus brief urging plenary consideration of the 
present appeals in tandem.

Public Citizen is a non-profit organization supported by 
contributions from approximately 65,000 individuals annually. 
It engages in a wide variety of activities on behalf of con­
sumers and is particularly concerned about laws and ethical 
restrictions that govern the price and quality of professional 
services as well as the dissemination of information about 
those services, especially as they relate to lawyers. Attor­
neys for Public Citizen represented the consumer plaintiffs 
in successful suits challenging the validity of lawyers’ mini­
mum fee schedules1 and challenging the constitutionality 
of statutory prohibitions on drug price advertising.2 In 
addition, Public Citizen has attempted to publish its own 
consumers’ directory of physicians but has been forced by 
low physician participation to commence litigation challeng­
ing on First Amendment grounds the constitutionality of 
an advertising restriction that prohibits doctors from being 
listed in such directories.3 Public Citizen has also submit­
ted amicus briefs in the cases of Jacoby v. State Bar o f  
California, No. LA 30601 (Cal. Sup. Ct., May 3, 1977),

1 Go Idfar b v. Virginia State Bar, 421 U.S. 773 (1975).

2 Virginia State Board o f Pharmacy v. Virginia Citizens Consumer 
Council, 425 U.S. 748 (1976).

3Public Citizen v. Commission on Medical Discipline o f Maryland, 
No. 76-1944 (4th Cir., appeal pending).



(ix)

and Bates v. State Bar o f  Arizona, 45 U.S.L.W. 4895 (U.S. 
June 27, 1977), both of which held that consumers have a 
right of access, protected by the First Amendment, to cer­
tain information about attorneys and their practices.

The National Resource Center for Consumers of Legal 
Services (the “Resource Center” ) is a non-profit organiza­
tion funded by foundations and by its members, which 
include labor unions, cooperatives, credit unions, and other 
consumer groups. The Resource Center represents more 
than 27,000,000 individual consumers of legal services through­
out the United States. A principal purpose of the Resource 
Center is to foster the growth and development of legal 
service delivery plans for low and middle income persons 
and to provide assistance to individuals and organizations 
that wish to establish such plans. Because the successful 
establishment and operation of these plans depends upon 
the ability of attorneys to disseminate information about 
their practices to consumers, the Resource Center is com­
mitted to improving the flow of such information. The 
Resource Center also participated amicus curiae in the Ja­
coby and Bates cases.

The interests presented by amici in this case are the in­
terests of consumers in having meaningful access to infor­
mation enabling them to determine when legal services may 
be useful, and allowing them to make informed choices 
among available lawyers and delivery systems. The infor­
mational interests of consumers are not identical to the 
interests of attorneys in disseminating information about 
their practices, but both interests are similar; consumers 
cannot secure meaningful access to information about attor­
neys if the attorneys are prevented from effectively dissemi­
nating that information. In fact, Last Term in Bates, the



(X)

majority opinion “deem[ed] it significant” that consumer 
organizations supported the elimination of the advertising 
ban struck down in that case. Slip Op. at 26 n.35, 45 U.S. 
L.W. at 4902. Consequently, presentation of the consumer 
interests will assist the Court in making an informed deci­
sion concerning the proper disposition of the present appeals.4

Respectfully submitted, 

GIRARDEAU A. SPANN

ALAN B. MORRISON 
Suite 700
2000 P Street, N.W.
Washington, D.C. 20036 
(202) 785-3704

Attorneys for Amici Curiae
November 17, 1977

^Although amici sought the consent of the parties to the filing 
of this brief, they were able to obtain consents from only three of 
the four parties involved. Consequently, amici have made the present 
motion.



IN THE

Supreme Court of the United States
OCTOBER TERM, 1977

No. 76-1650

ALBERT OHRALIK,
Appellant,

v.
OHIO STATE BAR ASSOCIATION,

Appellee.

No. 77-56

IN THE MATTER OF EDNA SMITH,
Appellant.

BRIEF OF AMICI CURIAE 
PUBLIC CITIZEN AND THE NATIONAL 
RESOURCE CENTER FOR CONSUMERS 

OF LEGAL SERVICES URGING THE COURT 
TO SET ASIDE THE DISCIPLINARY ORDERS BELOW

INTERESTS OF AMICI CURIAE

The interests of amici are set out in the accompanying 
motion for leave to file this brief amici curiae.



2

INTRODUCTION

Appellants in the two present actions are attorneys who 
have been disciplined for violating state prohibitions on so­
licitation which mirrored the prohibitions contained in the 
American Bar Association’s Code of Professional Responsi­
bility. Those provisions not only prohibit attorneys from 
urging individuals to employ them, but also prohibit attor­
neys from accepting employment by individuals whom they 
have advised of their legal rights. Because the effect of 
those prohibitions is to impede the flow of potentially 
useful information from lawyers to consumers, the prohibi­
tions must be measured against the standards that this Court 
has announced in similar kinds of First Amendment cases, 
most notably Bates v. State Bar o f  Arizona, 45 U.S.L.W. 
4895 (U.S. June 27, 1977). Since neither the Ohio nor 
South Carolina Supreme Courts applied the proper standards 
or made any findings of a real or potential harm to the 
public from the conduct for which appellants were disci­
plined, the decisions below should be set aside.

CONSTITUTIONAL AND 
ETHICAL PROVISIONS INVOLVED

The First Amendment to the United States Constitution 
provides in pertinent part:

Congress shall make no law . . . abridging 
the freedom of speech,. . .  or the right of the 
people peaceably to assemble, and to petition 
the Government for a redress of grievances.

DR 2-103 of the Ohio and South Carolina Codes of Pro­
fessional Responsibility provides in pertinent part:



3

(A) A lawyer shall not recommend employ­
ment, as a private practitioner, of himself, his 
partner, or associate to a non-lawyer who has 
not sought his advice regarding employment 
of a lawyer.

*  *  *

(D) A lawyer shall not knowingly assist a per­
son or organization that recommends, furnishes, 
or pays for legal services to promote the use 
of his services or those of his partners or as­
sociates. However, he may cooperate in a dig­
nified manner with the legal service activities 
of any of the following, provided that his 
independent professional judgment is exer­
cised in behalf of his client without inter­
ference or control by any organization or 
other person:

*  *  *

(5) Any other non-profit organization that 
recommends, furnishes, or pays for legal 
services to its members or beneficiaries, 
but only in those instances and to the 
extent that controlling constitutional in­
terpretation at the time of the rendition 
of the services requires the allowance of 
such legal service activities, and only if 
the following conditions, unless prohibited 
by such interpretation, are met:
(a) The primary purposes of such organi­

zation do not include the rendition of 
legal services.

(b) The recommending, furnishing or pay­
ing for legal services to its members is 
incidental and reasonably related to the



4

primary purposes of such organization.
(c) Such organization does not derive a fi­

nancial benefit from the rendition of 
legal services by the lawyer.

(d) The member or beneficiary for whom 
the legal services are rendered, and not 
such organization, is recognized as the 
client of the lawyer in that matter. M

*  *  *

DR 2-104 of the Ohio and South Carolina Codes of Pro­
fessional Responsibility provides in pertinent part:

(A) A lawyer who has given unsolicited ad­
vice to a layman that he should obtain coun­
sel or take legal action shall not accept em­
ployment resulting from that advice, except 
that:

(1) A lawyer may accept employment by a 
close friend, relative, former client (if the 
advice is germane to the former employ­
ment), or one whom the lawyer reasonably 
believes to be a client.

*  *  *

QUESTION PRESENTED

Can the Bar constitutionally prohibit all solicitation with­
out regard to its consumer benefits, or must it narrowly 
tailor its rules to prevent the few legitimate dangers that 
solicitation can involve?

* See page 30, note 19, below, concerning the ABA amendment 
to DR 2-103(D).



5

STATEMENT OF THE CASES 

A. Statement of Facts in No. 76-1650

In No. 76-1650, appellant Ohralik was indefinitely sus­
pended from the practice of law for soliciting two clients 
in a personal injury case. The Ohio Supreme Court ruled 
that appellant’s actions in securing employment violated 
DR 2 -103(A), which prohibits attorneys from recommend­
ing their employment to non-lawyers, and DR 2 - 104(A), 
which prohibits attorneys from accepting employment that 
results from unsolicited advice given to laypersons concern­
ing their legal rights. The record suggests that appellant 
would not have been retained if he had not initiated the 
contacts between himself and his clients, and it shows that 
both clients ultimately became dissatisfied with appellant’s 
representation. However, the record also indicates that in 
the process of securing employment, appellant informed his 
clients that they possessed legal rights of which they might 
not otherwise have been made aware. Moreover, none of 
the reasons for the clients’ ultimate disenchantment are 
traceable to the fact that it was appellant, rather than the 
clients, who initiated the contact that resulted in appellant’s 
retention.

Appellant’s representation of Carol McClintock, an 18 year 
old woman, was secured after he visited her in the hospital 
upon learning that she was injured in an accident while 
driving her parents’ automobile. Appellant, who was already 
slightly acquainted with Carol, first heard about the acci­
dent from the postmaster’s brother when he made one of 
his bi-weekly trips to the post office to pick up his mail. 
[Tr. 177-80],2 Shortly thereafter, he called Carol’s parents

' J
Tr.” refers to designated pages of the transcript. Because amici 

have cited portions of the transcript that the parties have not included 
in the Appendix, page references have been made to the transcript 
itself. References to pages in the Appendix are followed by “a.”



6

to inquire about her health, and apparently Carol’s parents 
expressed some concern that they might be sued by Wanda 
Lou Holbert, Carol’s passenger at the time of the accident. 
Mr. Ohralik then went to visit the parents and afterwards 
went to see Carol herself in the hospital. During his visit 
with Carol appellant advised her of her legal rights and they 
discussed the possibility of his retention on a one-third con­
tingent fee basis. He then returned to the McClintock’s 
home and was told that Carol had called to request him 
to represent her. Mr. Ohralik consented and began to dis­
cuss the accident with the McClintocks. [Tr. 180-90].

During his discussion with the McClintocks appellant as­
sured them that they did not need to worry about being 
sued by Carol’s passenger because Ohio had a guest statute 
which prohibited such suits. He also explained the opera­
tion and underlying theory of the guest statute, and ex­
plained other theories of liability that could supersede it, 
but advised the McClintocks that in their case they had 
little to fear. In addition, appellant explained the unin­
sured motorist coverage of the McClintocks’ policy and in­
formed them that Carol could be compensated for her in­
juries even though the driver who caused the accident had 
no liability insurance. He also explained how the negotia­
tion and settlement process generally worked in personal 
injury cases. [Tr. 167, 182, 234, and 96a-105a].3

Mr. Ohralik next went to visit Wanda Lou Holbert, the 
passenger in Carol’s car who had also been injured in the 
accident. Wanda had just returned home after being released 
from the hospital, and appellant stated that he was calling 
on her as a witness to the accident. Shortly after their 
conversation began, however, appellant volunteered that he

3 Appellant made a tape recording of this conversation. The 
actual tape is in the record, and a transcript is reproduced in the 
Appendix.



7

was already representing Carol and offered to represent 
Wanda as well on a one-third contingent fee basis. Wanda 
said, “O.K.,” and they then discussed the circumstances sur­
rounding the accident. During this discussion, appellant 
explained the nature of the claims that Wanda had against 
the McClintocks’ insurance company, he explained her obli­
gations under their contingent-fee arrangement, and he cau­
tioned her against speaking to insurance adjusters, frequently 
emphasizing that she was now represented by a lawyer. 
[118a-130a].4

The following day, February 14, 1974, appellant received 
a telephone call from Wanda’s mother, during which she 
attempted to discharge him. Appellant, however, asserted 
that he was representing Wanda, an 18 year old, legally 
competent adult, and that Wanda’s mother could not 
effectively discharge him. After this conversation appel­
lant took no action to confirm his retention by Wanda 
but rather continued to assert claims on her behalf against 
the insurance company. Similarly, Wanda took no action 
to confirm her mother’s attempted discharge. It was not 
until one month later, on March 14, 1974, that Wanda 
finally wrote a one sentence letter to appellant discharging 
him, apparently because of her feeling that there had been 
undue delay in her receipt of benefits from the insurance 
company. [Tr. 32, 63-65]. In addition, Wanda filed a 
grievance complaint against Mr. Ohralik.

In the meantime, Carol had also become dissatisfied 
with Mr. Ohralik’s representation and wished to replace 
him with another attorney. She too stated that this was 
because of delay in receiving any payments from the in­
surance company, and because of what she stated was in­

^ Appellant also tape recorded bis conversation with Wanda.



8

sensitivity and neglectful representation on the part of ap­
pellant. [Tr. 97-99, 118, 197]. In Carol’s case, however, 
appellant eventually obtained an agreement from the insur­
ance company to pay her $12,500, the maximum amount 
available under the policy, but Carol refused to accept the 
money and refused to pay appellant the $4,166.66 he 
claimed as a contingent fee. Appellant then sued Carol 
to collect his fee, and Carol hired a second attorney to 
defend that suit. Ultimately, the suit was settled, and 
Carol paid appellant the full fee that he had demanded. 
She also paid her second attorney a $900 fee. [Tr. 118-19, 
133-34, 138, 140-41]. As a result of her dissatisfaction 
with appellant’s representation, Carol also filed a grievance 
complaint against appellant.

The complaints made by Wanda and Carol prompted 
the Ohio State Bar Association to request the initiation of 
formal grievance proceedings against appellant charging him 
with violating the two prohibitions on solicitation contained 
in DR 2 -103(A) and DR 2 -104(A). After conducting an 
evidentiary hearing, a three-member Panel of the Board of 
Commissioners on Grievances and Discipline found that 
appellant had unethically solicited Wanda and Carol in 
violation of those two code provisions, and recommended 
that he be given a public reprimand. Appellant had argued 
that the two ethical provisions under which he was charged 
were invalid because they unconstitutionally deprived him 
of his First Amendment right of Free Speech, but the 
Panel rejected this argument, devoting only a single sen­
tence to it. On appeal, the Ohio Supreme Court upheld 
the Panel’s ruling but, without explanation, increased ap­
pellant’s punishment to indefinite suspension from practice 
and taxed $1797.28 in costs against him. The Ohio Su­
preme Court also summarily rejected appellant’s First 
Amendment claim, again disposing of it in a single sentence. 
The present appeal to this Court followed.



9

Several features of these facts are significant. First, in 
the process of promoting his own services, appellant con­
veyed valuable information to many people concerning 
their legal rights. He not only advised Carol and Wanda 
that they had viable claims for damages even though the 
drunk driver who caused their accident had no liability 
insurance, but he also informed them that those claims 
could be asserted on a contingent-fee basis, entailing no 
risk of financial loss to them. These are facts of which 
Carol and Wanda were apparently unaware. In addition, 
appellant relieved Carol’s parents’ apprehensions concerning 
a potential suit against them by Wanda. [Tr. 167, 182, 
234]. All of this information was provided free of charge, 
but it is unrealistic to think that appellant would have 
conveyed this information in the absence of the hope of 
future financial gain.

Another feature worth emphasizing is that although ap­
pellant’s contacts with Carol and Wanda took place shortly 
after an accident, under circumstances that have tradition­
ally been viewed as particularly fraught with the dangers 
of duress and overreaching, there is no evidence that either 
woman was unable to make a reasoned decision at the 
time that appellant was retained, and the disciplinary tri­
bunals made no such findings. Moreover, the difficulties 
that developed later between appellant and his clients did 
not stem from the context in which they were approached 
or even from the fact that appellant initiated the contact. 
Rather, those difficulties, relating to the quality of appel­
lant’s representation, arose later when Carol and Wanda 
were no longer in particularly vulnerable positions.



10

B. Statement of Facts in No. 77-56

In No. 77-56, appellant Smith was publicly reprimanded 
for solicitation in violation of DR 2-103(D), which pro­
hibits attorneys from assisting an organization to promote 
the use of their services if the organization recommends, 
furnishes, or pays for legal services, and DR 2-104(A) which 
prohibits attorneys from accepting employment that results 
from unsolicited legal advice that they have given to lay 
persons. The South Carolina Supreme Court ruled that 
appellant violated those provisions by informing a group 
of involuntarily sterilized welfare mothers that they could 
sue their doctors for damages, and then, in a subsequent 
letter, offering the services of the ACLU to represent one 
of those women on a pro bono basis. The record does 
not contain any indication that the welfare mothers were 
harmed by appellant’s actions, and no such finding was 
made by the disciplinary tribunals. On the contrary, the 
record establishes that appellant informed those women 
about legal rights of which they would otheriwse have re­
mained unaware.

The events leading to appellants’ discipline began in the 
Summer of 1973 when the national press reported that 
indigent black women in Aiken County, South Carolina 
were being forced to submit to sterilization as a condition 
of receiving Medicaid benefits. Gary Allen, who was active 
in Aiken community affairs and who knew women who 
had been involuntarily sterilized, contacted the South Caro­
lina Council on Human Rights requesting advice and assist­
ance for the welfare mothers [Tr. 151]. In response, the 
Council decided to send appellant Smith, its legal consult­
ant, to Aiken to speak to three welfare mothers that Mr. 
Allen had assembled. [Tr. 59-60, 90, 93-94].



11

Ms. Smith was particularly well suited for the task. She 
is a black woman attorney who graduated from the Univer­
sity of South Carolina law school and was admitted to 
practice in 1972. Although she was only 29 at the time 
of the Aiken meeting, she had already accumulated years 
of community service through her active involvement in 
civil liberties and human rights organizations while working 
her way through school. In addition to being a past Exec­
utive Secretary of the Council on Human Rights, and Chair­
person of its student chapter while in college, Ms. Smith 
had also participated hi a variety of voter registration, lit­
eracy, and day care programs, and has been on the faculty 
of three different universities in South Carolina, teaching 
constitutional and consumer law. At the time of the Aiken 
meeting appellant was not only legal consultant for the 
Council on Human Rights, but was an officer and member 
of the Board of Directors of the South Carolina Chapter 
of the ACLU, as well as an ACLU cooperating attorney. 
[Tr. 55-59, 75],

The Aiken meeting was scheduled by Mr. Allen for July, 
1973. At that meeting appellant informed the welfare 
mothers that they could not legally be forced to choose 
between sterilization and loss of Medicaid benefits. She 
also informed them that they had a right to sue their doc­
tors for money damages if sterilization operations had been 
performed on them as a result of such coercion. No ar­
rangements to file any lawsuits were made at that meeting, 
however.

Shortly after the Aiken meeting was held, Mr. Allen 
wrote to Ms. Smith stating that Marietta Williams, one of 
the women who had attended, wished to file suit against 
her doctor.5 By this time, the National ACLU had also

 ̂There is conflicting testimony concerning whether Mrs. Williams 
ever told Mr. Allen that she wanted to file suit, but it is undisputed 
that this is what Mr. Allen reported to appellant.



12

become very interested in the problem of coerced sterili­
zation and had communicated to appellant its desire to 
offer assistance. Consequently, on August 30, 1973, appel­
lant wrote to Mrs. Williams, informing her that the ACLU 
had already agreed to represent another Aiken welfare 
mother in a suit against her doctor for involuntary sterili­
zation and would like to represent Mrs. Williams also if 
she were interested in filing suit.6

Shortly after receiving the letter from appellant, Mrs. 
Williams took her child to the office of Dr. Pierce, the 
doctor who had performed her sterilization operation. For 
reasons that are not disclosed in the record, the doctor’s 
lawyer was also present in the office at the time of this 
visit. Moreover, Mrs. Williams had taken appellant’s letter 
with her to Dr. Pierce’s office. During the meeting that 
followed, Mrs. Williams gave the letter to the lawyer, signed 
a form waiving any liability that Dr. Pierce might have for 
performing the sterilization operation, and then telephoned 
appellant from the doctor’s office informing her that she 
did not wish to file suit against her doctor. [See Tr. 21- 
24] ?  Appellant did not contact Mrs. Williams again, Mrs. 
Williams never sued her doctor, and appellant never repre­
sented Mrs. Williams in any capacity. Subsequently, two 
other women did file suit against Dr. Pierce for coerced 
sterilization, Doe v. Pierce, No. 74-475 (D.S.C. 1974), but 
neither of these women were ever contacted or represented 
by appellant.

Mrs. Williams never filed a complaint with the Bar, the 
Attorney General, or anyone else concerning appellant’s 
actions. However, Dr. Pierce’s lawyer did file a complaint 
after he unsuccessfully attempted to use appellant’s August 
30, 1973 letter to Mrs. Williams in support of his claim

"’This letter is reproduced at page 25a of appellant’s Jurisdictional 
Statement. See also Tr. 18, 83, 152-53.



13

that Doe v. Pierce should be dismissed on grounds that 
the plaintiffs had been solicited. [See Tr. 21-24, 161-62, 
164, 168], As a result, on October 10, 1974, the Board 
of Commissioners On Grievances And Discipline charged 
Ms. Smith with solicitation in violation of unspecified pro­
visions of the Canons of Ethics as a result of her August 
30 letter.7

After an evidentiary hearing, a three-member Panel of 
the Commission On Grievances And Discipline found that, 
while there was no evidence establishing that appellant had 
solicited Mrs. Williams for her own benefit, she was guilty 
of soliciting Mrs. Williams on behalf of the ACLU — an 
organization that would benefit financially if the suit were 
successful and the Court were to award attorney’s fees.
The Panel ruled that appellant had violated DR 2 -103(D) 
and DR 2-104(A), but recommended only a private repri­
mand after finding that appellant’s activities were neither 
aggravated nor widespread. The Panel considered and re­
jected appellant’s claim that her actions were protected by 
the First Amendment. On appeal, the South Carolina Su­
preme Court upheld the Panel’s ruling but increased appel­
lant’s punishment to a public reprimand, rejecting the Panel’s 
finding that the circumstances were not aggravated. No 
reason was given for the rejection of this finding, and all 
of the Panel’s other findings were upheld. In fact, all but 
a few paragraphs of its opinion were quoted directly from 
the Panel Report, including the Panel’s analysis of the First 
Amendment issues. The present appeal followed.

The facts of this appeal illustrate several considerations 
that are central to the issue of solicitation. First, appel­
lant not only communicated to Mrs. Williams information

7 The complaint is reproduced at page 23a of appellant’s Jurisdic­
tional Statement.



14

about legal rights of which she was unaware, but informed 
her that an attorney was available to assert her claims free 
of charge. [Tr. 6-7, 34, 39, 77, 79, 102, 106]. Because 
of Mrs. Williams’ limited education and social circumstances, 
it is reasonable to conclude that she would never have 
learned about her legal rights if someone had not first ap­
proached her since it is unlikely that she would ever have 
consulted an attorney on her own. Moreover, information 
concerning the availability of a free attorney was especially 
valuable in this case where unpopular and politically con­
troversial issues were involved, since available attorneys are 
likely to be difficult to find in such cases.

It is also significant that appellant offered the services 
of the ACLU without any hope of personal financial gain. 
Although there was a possibility that the ACLU would re­
cover court-awarded attorneys’ fees, there is no evidence 
whatsoever to suggest that financial considerations in any 
way motivated the ACLU’s actions or those of appellant. 
Rather, appellant’s background strongly suggests that she 
was motivated solely by a genuine desire to assist those 
whose interests were not adequately represented.8

The facts of this appeal also highlight the tendency of 
vague and broad disciplinary rules to be used for improper 
purposes. Even though Mrs. Williams had not complained 
about appellant’s actions, Dr. Pierce’s attorney apparently 
tried to use the suggestion of ethical violations to secure

^Appellant was not compensated for any of her ACLU activities, 
[Tr. 59], and even if she had ultimately represented Mrs. Williams 
herself, she could not have benefitted financially. Under the policy 
in effect at all times pertinent to this appeal, ACLU cooperating 
attorneys did not keep court-awarded attorneys fees. Those fees 
went to the ACLU Foundation to pay expenses and salaries of na­
tional and regional ACLU staff attorneys. [Tr. 103, 141]. Under 
a newly instituted policy, however, in some cases cooperating attor­
neys now retain court-awarded attorneys fees.



15

dismissal of Doe v. Pierce and, when that failed, to retali­
ate against appellant. [Tr. 21-24, 161-62, 164, 168].9 
Moreover, the fact that appellant’s case is only the fourth 
reported disciplinary proceeding for solicitation in the en­
tire history of the State of South Carolina strongly sug­
gests that her solicitation proceedings had been instituted 
in a discriminatory manner. Despite the injustice and 
chilling effect that such use of the solicitation rules would 
have, the Panel did not make any findings in this regard 
and did not even allow appellant to introduce evidence of 
bad faith or retaliation. [Id.\.

There are many other instances in which the Panel not 
only failed to make findings, but totally excluded evidence 
that appellant wished to introduce concerning consumer 
interests. For example, the Panel refused to hear evidence 
relating to whether indigents and minority individuals were 
frequently ignorant of their legal rights, even when this 
was offered to show the non-financial nature of appellant’s 
motives. [Tr. 70-72]. The Panel also excluded evidence 
showing the difficulty that such individuals have in obtain­
ing lawyers — especially for unpopular cases. [Tr. 125, 
149-50], Moreover, the Panel did not allow appellant to 
introduce evidence concerning the ACLU’s commitment to 
informing unsophisticated clients about their legal rights 
and providing them with attorneys. Nor did it allow evi­
dence showing that it is frequently necessary for the ACLU 
to initiate client contact in order to pursue its objectives 
effectively. [Tr. 123-25, 143-44], Finally, the Panel did 
not even permit appellant to introduce evidence supporting 
her claim that institution of disciplinary proceedings against 
her under the facts of this case would deter other attor­

9 If anyone should be disciplined as a result of the events in this 
case, Dr. Pierce’s lawyer is the prime candidate.



16

neys from accepting controversial or unpopular cases. [Tr. 
125-27, 128-29],

SUMMARY OF ARGUMENT

The provisions of the Code of Professional Responsibility 
which prohibit virtually all solicitation by attorneys unnec­
essarily deprive consumers of information concerning their 
legal rights and violate the First Amendment. Solicitation 
rules are intended to protect the interests of consumers, 
but because the present rules prohibit all solicitations rather 
than distinguishing between helpful and harmful solicita­
tions, they do consumers a disservice. The present rules 
are not only capable of producing absurd results, but they 
are inconsistent with many other Code provisions. More­
over, because those rules are dangerously vague and over­
broad, they have a substantial in terrorem effect. Conse­
quently, the present solicitation rules are in serious need 
of substantial modification.

Because solicitation involves the communication of po­
tentially useful information to consumers, First Amend­
ment protections apply to solicitation. Last term’s de­
cision in Bates v. State Bar o f  Arizona, supra, indicates 
that neither the commercial nature of some solicitations, 
nor the fact that the legal profession is involved elimi­
nates these First Amendment protections. Since the 
First Amendment applies, the solicitation rules can be 
upheld only if they are shown to be the least restric­
tive means of achieving a compelling state interest, and 
the state’s interest in prohibiting solicitation is shown to 
outweigh the consumer benefits. NAACP v. Button, 371 
U.S. 415, 438-39 (1963); Larnont v. Postmaster General, 
381 U.S. 301, 308-09 (1965); Dunn v. Blumstein, 405 
U.S. 330, 342-43 (1972); Shelton v. Tucker, 364 U.S. 479,



17

488-90 (1960); Talley v. California, 362 U.S. 60, 62-64 
(1960); Broadrick v. Oklahoma, 413 U.S. 601, 611-12 
(1973).

While there are many important consumer benefits to 
be obtained from solicitation, the justifications traditionally 
offered to support banning solicitations are without merit, 
and most have already been rejected by this Court in Bates. 
Moreover, the one danger to which solicitation rules may 
properly be directed—the danger of undue influence—can 
be prevented by alternatives which are less restrictive than 
a total prohibition and which preserve the informational 
value of solicitation. Consequently, the present solicitation 
rides violate the First Amendment.

Applying these standards to the cases before this Court, 
the particular conduct of appellant Smith is not commercial 
in nature and is, therefore, entitled to full First Amendment 
protection under NAACP v. Button, supra. Although appel­
lant Ohralik’s conduct constituted commercial speech, it is 
still protected by the First Amendment because it did not 
pose any of the legitimate evils underlying solicitation rules. 
Therefore, the disciplinary orders entered against each ap­
pellant should be set aside.10

^ T h e  records of both appeals suggest that serious due process 
problems exist concerning the disciplinary procedures to which each 
appellant was subjected. Amici have not addressed those due pro­
cess questions because their primary interest concerns the constitu­
tionality of the solicitation rules under the First Amendment. Amici 
assume that the parties will discuss the due process issues, and do 
not by their silence intend to suggest that due process requirements 
were met.



18

ARGUMENT

I. THE PRESENT SOLICITATION RULES ARE 
ARE SERIOUSLY IN NEED OF MODIFICATION.

The provisions of Canon 2 of the ABA Code of Profes­
sional Responsibility now prohibit virtually all solicitation 
of clients by lawyers. However, not all communications 
termed “solicitation” are harmful; often solicitation results 
in the flow of valuable information from lawyers to con­
sumers concerning both their legal rights and the availabil­
ity of attorneys willing to assert those rights. Nevertheless, 
the ABA rules make no attempt to distinguish between 
useful and harmful solicitations. Moreover, since those 
rules have been adopted by nearly every state, the degree 
to which they can suppress the flow of useful information 
is enormous. Consequently, the current rules concerning 
solicitation are in serious need of substantial modification.

The need for a new approach to solicitation is easily 
documented. Imagine the following scene. A woman en­
ters a municipal courts building, holding her young son by 
the hand. She speaks almost no English. She is intimi­
dated and frightened by the imposing surroundings. She 
does not want to be there, but she has received a sum­
mons requiring her to appear somewhere in that building 
because her landlord is trying to evict her and her family. 
On the verge of despair, she is approached by a smiling 
young man who asks her in her own language whether 
there is anything that he can do to help. After hearing 
about her predicament, the young man takes her to his 
employer, a lawyer, who accompanies her to court, pre­
vents the eviction, and accepts a modest fee. The woman 
is, of course, very appreciative, but the bar is not. A 
grievance complaint is issued and the lawyer is disciplined 
for solicitation. This is essentially what happened in In 
Re Solomon Cohn, and from the standpoint of consumer



19

interests, the result is absurd. Solicitation rules that can­
not distinguish between the Cohn case and a case involv­
ing genuine abuses are in serious disrepair and in bad need 
of major modifications.11

The present solicitation rules are also inconsistent with 
many other Code provisions. For example, a lawyer has 
an important duty to assist the legal profession in making 
legal counsel available. This is because

[t] he need of members of the public for 
legal services is met only if they recognize 
their legal problems, appreciate the impor­
tance of seeking assistance, and are able to 
obtain the services of acceptable legal coun­
sel. Hence, important functions of the legal 
profession are to educate laymen to recog­
nize their problems, to facilitate the process 
of intelligent selection of lawyers, and to 
assist in making legal services fully available.
EC 2-1 [footnotes omitted].

Consequently, the Code directs lawyers to “assist laymen 
to recognize legal problems because such problems may 
not be self-revealing and often are not timely noticed.”
EC 2-2 [footnote omitted].

The Code also admonishes lawyers to charge a reason­
able fee to those who can afford to pay since “ [t]he legal 
profession cannot remain a viable force in fulfilling its 
role in our society unless its members receive adequate

11 This case is reported in the New York Law Journal, Feb. 19, 
1974, p. 2, cols. 6-7, and is discussed by Professor Monroe H. Freed­
man in his book Lawyers’ Ethics In An Adversary’ System, Ch. 10, 
Bobbs-Merrill (1975).



20

compensation for services rendered.” EC 2-16.12 But 
when a client is impecunious, “ [t] he rendition of free legal 
services to those unable to pay reasonable fees continues to 
be an obligation of each lawyer.” EC 2-25. Lawyers also have 
a special obligation to represent clients asserting unpopular 
or controversial causes. EC 2-27. Finally, it is every law­
yer’s duty to help improve the legal system so that it 
“commands public respect and fosters the use of legal 
remedies to achieve redress of grievances.” EC 8-1. See 
also EC 8-2 and EC 8-3.

The irony in all of this is striking. Lawyers have inde­
pendent obligations to make legal services available, to 
inform lay persons of their legal rights, to charge an ade­
quate fee or provide free representation to indigents, and 
to foster the use of legal remedies, but when they are all 
added together, they total solicitation -  a prohibited activ­
ity. Such a calculus is difficult to justify. If fulfilling 
one of a lawyer’s obligations is good, then fulfilling all of 
them ought to be even better.

An additional defect in the ABA’s approach to solicita­
tion lies in its undue focus on motivation. The Code allows 
certain communications to be made to potential clients 
only if they are not motivated by the hope of financial 
gain. See EC 2-3 and EC 2-4. Financial motivation, how­
ever, does not render a communication per se useless or 
harmful as the ABA would have us believe. On the con­
trary, under our free enterprise system, the profit motive 
is not only acceptable but is frequently cited as the cause 
of quality goods and services that have led to our high 
standard of living. Indeed, many attorneys probably

^2The legal profession seems to have taken this obligation quite 
seriously. See Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975).



21

entered the legal profession at least in part because it is 
a lucrative one, but no one has suggested that this makes 
the quality of their services suspect. See Bates v. Arizona 
State Bar, supra, slip op. at 20, 45 U.S.L.W. at 4900-01.
In fact, it is reasonable to conclude that the flow of valu­
able information to legal consumers will actually increase 
if lawyers are permitted to benefit financially from such 
communications.13

Solicitation rules are intended to benefit consumers of 
legal services. They are not designed to serve the econom­
ic interests of lawyers, nor are they meant to provide am­
munition for disciplinary tribunals desiring to discourage 
unpopular litigation. However, as these appeals illustrate, 
the organized bar has lost sight of the primacy of consum­
er interests. Consequently, the Court should use this op­
portunity to reevaluate the legal profession’s entire approach 
to solicitation, and in so doing should give foremost con­
sideration to the interests of consumers.

^Although financial motivation seems central to the general ban 
on solicitation, the Smith case shows that the breadth and vagueness 
of solicitation rules allow them to be used even where free legal serv­
ices are offered to indigents with important constitutional claims, and 
to be used in a highly arbitrary manner that makes them likely candi­
dates for abuse.



22

II. THE SOLICITATION RULES UNDER WHICH APPEL­
LANTS WERE DISCIPLINED VIOLATE THE FIRST 

AMENDMENT.

A. First Amendment Protections Apply To Commu­
nications That Are Now Prohibited.

Because solicitation involves the communication of infor­
mation, First Amendment protections apply. See Bates v. 
State Bar o f  Arizona, supra. When lawyers advise potential 
clients of their rights and offer their services, they are, of 
course, engaged in speech. Moreover, when consumers 
listen, they are receiving information from a willing speak­
er. Because the First Amendment was intended to foster 
communication — which requires both the dissemination 
and receipt of information — the right to receive has re­
peatedly been recognized by this Court as a First Amend­
ment right existing independently of the rights of the 
speaker. Kleindienst v. Mandel, 408 U.S. 753, 762-63 
(1972); Stanley v. Georgia, 394 U.S. 557, 564 (1969); 
Lamont v. Postmaster General, supra, 381 U.S. at 307; 
Martin v. Struthers, 319 U.S. 141, 143 (1943). Conse­
quently, even if an attorney’s interest in soliciting were 
unable to survive First Amendment scrutiny, the interest 
of consumers alone in receiving the information conveyed 
through solicitation would entitle solicitation to protection. 
Compare Virginia State Board o f  Pharmacy v. Virginia 
Citizens Consumer Council, supra, with Patterson Drug 
Company v. Kingery, 305 F. Supp. 831, 825 (W.D. Va. 
1969) (three-judge court). Of course, as this Court has 
recognized, the most sensible approach is to consider all 
of the First Amendment interests involved rather than iso­
lating them, because the First Amendment’s function is to 
protect the free flow of information from speaker to re­
cipient. See Virginia State Board o f  Pharmacy v. Virginia 
Citizens Consumer Council, supra, 425 U.S. at 756-57.



23

It can no longer be tenably asserted that the commer­
cial nature of some solicitation deprives it of First Amend­
ment protections. The Court rejected a per se commer­
cial speech exception to the First Amendment in the Phar­
macy case, 425 U.S. at 761-70, and reaffirmed that hold­
ing with respect to the legal profession in Bates, stating 
that the result flowed a fortiori from the Pharmacy opin­
ion. Slip op. at 13-14, 45 U.S.L.W. at 4898-99. Like­
wise, the conclusion that solicitation rules merit First Amend­
ment protections may be said to flow a fortiori from the 
Eates decision. The similarities between the advertising 
involved in that case and the solicitation involved in the 
present cases are strong. All three cases involve suppres­
sion of information that is potentially very useful to con­
sumers. Moreover, they all adopt the paternalistic approach 
toward the public that was so forcefully rejected in Bates:

[W] e observed that “on close inspection it is 
seen that the State’s protectiveness of its citi­
zens rests in large part on the advantages of 
their being kept in ignorance.” Id., at 769.
But we noted the presence of a potent alter­
native to this “highly paternalistic” approach:
“That alternative is to assume that this infor­
mation is not in itself harmful, that people 
will perceive their own best interests if only 
they are well enough informed, and that the best 
means to that end is to open the channels of 
communication rather than to close them.”
Id., at 770. The choice between the dangers 
of suppressing information and the dangers 
arising from its free flow was seen as pre­
cisely the choice “ that the First Amendment 
makes for us.” Ibid. See also Linmark Asso­
ciates, Inc. v. Willingboro, [431] U.S. [85,



24

97] (1977). [Slip op. at 13, 45 U.S.L.W. 
at 4899, quoting Virginia State Board o f  
Pharmacy v. Virginia Citizens Consumer 
Council, supra].

Further, all three prohibitions are based on similar il­
logical assumptions. As Mr. Justice Blackmun stated in 
Bates, “ [i] f  the commercial basis of the [lawyer-client] 
relationship is to be promptly disclosed on ethical grounds, 
once the client is in the office, it seems inconsistent to 
condemn the candid revelation of the same information 
before he arrives at that office.” Slip op. at 17, 45 U.S. 
L.W. at 4900. Similarly, if a lawyer may advise clients 
about their legal rights when clients initiate the contact, 
it is difficult to see why communication about the very same 
rights is prohibited simply because a lawyer initiated the 
contact rather than a potential client. 14

Because the First Amendment applies, solicitation rules 
must be strictly scrutinized, and they can be upheld only 
if certain demanding tests are met. Traditionally, where 
First Amendment rights are involved, state modes of regula­
tion can be sustained only if they are shown to further a 
compelling state interest, and to be narrowly drawn so as 
to entail the least possible intrusion on protected activities. 
NAACP v. Button, supra, 371 U.S. at 438-39; Lamont v. 
Postmaster General, supra, 381 U.S. at 308-09; Dunn v.

As if to emphasize the similarities between Bates and the pres­
ent case, appellee Ohio State Bar Association relies on an old Four­
teenth Amendment due process case to justify its ban on solicitation, 
just as the Airzona State Bar relied on Fourteenth Amendment due 
process cases to justify its ban on advertising. See page 5 of the 
Ohio Bar Association’s Motion To Dismiss. This reliance, of course, 
proved to be misplaced. See, Bates v. Airzona State Bar, slip op. at 
5-7, 45 U.S.L.W. at 4897.



25

Blumstein, supra, 405 U.S. at 342-43; Shelton v. Tucker, 
supra, 364 U.S. at 488-90; Talley v. California, supra,
362 U.S. at 62-64; Broadrick v. Oklahoma, supra, 413 U.S. 
at 611-12. Cf United States v. O ’Brien, 391 U.S. 367, 
376-77 (1968). In Bates, the Court suggested that these 
protections might be somewhat limited because of the com­
mercial nature of the underlying transaction, but the test 
is still a strict one. 15 Finally, because the First Amend­
ment is involved, any proffered justifications for solicita­
tion should be rooted in actual evidence rather than 
theoretical speculation.

Although the term “solicitation” conjures up specters of 
ambulance chasing and prowling the hospital wards, the 
strong emotional reactions that are often evoked by the 
term should not be allowed to obscure the analysis neces­
sary to ensure that First Amendment rights are given ade­
quate protection.

The Court has stated that “a State can­
not foreclose the excercise of constitutional 
rights by mere labels.” NAACP v. Button,
371 U.S. at 429 . . . .  Regardless of the partic­
ular label asserted by the State — whether 
it calls speech “commercial” or “commer­
cial advertising” or “solicitation” — a court 
may not escape the task of assessing the 
First Amendment interest at stake and weigh­
ing it against the public interest allegedly

1 ̂  Appellant Smith, and all other attorneys who are motivated 
by non-financial rewards, can hardly be accused of commercial soli­
citation and, therefore, should be entitled to full First Amendment 
protections.



26

served by the regulation. [Bigelow v.
Virginia, 421 U.S. 809, 826 (1975)].16

Inquiry must, therefore, be made into the justification 
for the present solicitation rules to see if they bear a suf­
ficient relationship to a legitimate state interest to with­
stand First Amendment scrutiny. In conducting this in­
quiry, the objective should be to maximize the flow of 
valuable information to consumers while minimizing any 
incidental dangers.

B. Consumers Have A Substantial Interest In 
Receiving Information Concerning Their 
Particular Legal Rights That Greatly Out­
weighs Any Interest That The Bar Has In 
Suppressing All Solicitations.

Bates held that the benefits of lawyer advertising to con­
sumers outweighed the potential harms cited by the orga­
nized bar to justify a total ban on advertising. As shown 
below, the benefits to be derived from solicitation may be 
even greater than the benefits of advertising, and many of 
the danger are not as serious. Consequently, in many 
respects, the First Amendment case for solicitation is even 
stronger than the case for advertising.

^  Indeed, advertising and solicitation can be so closely related 
that it may be difficult to distinguish between the two. For exam­
ple, if an attorney specializing in probate work sent a copy of a 
previously-run newspaper advertisment to the families of individuals 
listed in the obituary column of the newspaper, would that be ad­
vertising or solicitation? Regardless of how it is classified, the valid­
ity of that conduct should not be determined by the label applied 
to it.



27

While advertising can provide consumers with generalized 
information about legal services, as well as standardized 
price information, the information conveyed through soli­
citation can be much more useful since potential clients 
are given information about their specific legal rights in 
particular cases. In addition, the potential clients learn 
about attorneys willing to handle their particular cases at 
a specified fee tailored to their cases. This is precisely 
what happened in Ohralik. The two clients were advised 
of their rights arising out of a specific accident, and they 
learned that at least one attorney was willing to represent 
them on a contingent-fee basis involving no financial risk 
to themselves.

Solicitation can also provide economic benefits to con­
sumers. Appellant Ohralik, for example, might well have 
charged each of his clients less than his full fee since much 
of the work he did might have been useful in both cases. 
This is much more likely to happen if lawyers are per­
mitted to solicit multiple clients with closely related legal 
claims. 17 Moreover, if lawyers were permitted to solicit, 
competition and its beneficial effects on the cost and 
quality of service would be enhanced. Perhaps Carol and 
Wanda had such strong claims that another attorney would 
have offered a one-fourth contingent fee if he or she had 
been permitted to compete by soliciting. If solicitation 
were permitted, there would be a strong incentive for 
lawyers to increase the quality of their representation and 
to reduce their fees.

17 Indeed, the failure to charge a reduced fee in such a situation 
might well constitute a violation of DR 2-106 which prohibits an 
attorney from collecting an excessive fee. Of course, multiple repre­
sentation would also be governed by the conflict-of-interest provisions 
of Canon 5.



28

The one danger that troubled Chief Justice Burger and 
Justices Powell and Stewart in Bates is entirely absent in 
the context of solicitation. They believed that the ad­
vertising of standardized fees for legal services was likely 
to be misleading -  even inherently misleading -  because 
fees must be set for every case individually. When attor­
neys solicit, however, the legal advice that they offer, in­
cluding the communication of fee information, is rooted 
in a particular case, and, therefore, the dangers of con­
sumers being misled are greatly reduced. It should also be 
noted that while advertising can potentially increase the 
costs of legal services by increasing a lawyer’s overhead, 
solicitation does not entail such increased expenditures. 
Consequently, fees are less likely to be increased as a 
result of solicitation than as a result of advertising.

The Smith case illustrates a different, and perhaps more 
compelling interest that can be served by solicitation.
There, Mrs. Williams, an indigent, uneducated, black wel­
fare mother was informed about her constitutional rights 
as a result of appellant’s “solicitation” of her. By inter­
fering with that communication, the State of South 
Carolina not only interfered with the right to disseminate 
and receive information, but in a very real sense it in­
terfered with Mrs. William’s First Amendment right to peti­
tion the courts to redress her grievances since it is unreal­
istic to think that she would ever have consulted an at­
torney on her own. Moreover, both appellant Smith and 
the ACLU are demonstrably committed to the advance­
ment of human rights and civil liberties. By approaching 
Mrs. Williams they too were attempting to advance their 
causes through access to the courts, a well recognized First 
Amendment activity. California Motor Transport Co. v. 
Trucking Unlimited, 404 U.S. 508, 510 (1972); United 
Transportation Union v. State Bar o f  Michigan, 401 U.S.



29

576, 585 (1971); United Mine Workers v. Illinois Bar 
Ass’n., 389 U.S. 217 (1967); Brotherhood o f  R. Trainmen 
v. Virginia, 377 U.S. 1 (1964); NAACP v. Button, supra.18 
In addition, society in general is benefitted from the broad 
remedial effects of successful test case litigation involving 
important constitutional rights such as that contemplated 
by appellant Smith.

Relaxation of solicitation restrictions would also benefit 
consumers by allowing free development of alternative legal 
services delivery mechanisms. DR 2-103(D), one of the 
provisions that appellant Smith was found to have violated, 
broadly prohibits attorneys from assisting organizations to 
promote the use of their services. Although some excep­
tions are specified, the prohibition still explicitly applies to 
organizations whose primary purpose is the rendition of 
legal services, or who derive financial gain from rendering 
such services. DR 2-103(D)(5)(a)-(d). By its terms, this 
provision prohibits attorneys from joining together to es­
tablish a legal clinic or any other type of innovative law 
office that simply advertises its existence, since they 
would be cooperating with a non-qualifying organization. 
This provision would also prohibit attorneys from public­
ly offering prepaid legal service plans, even though such 
plans may well be essential to adequately meet the legal 
needs of the public. In fact, the very activity found by 
this Court to be protected in Bates is prohibited by DR 
2-103(D). Therefore, unrestrained Bar manipulation of sol­
icitation rules could have the effect of taking back many

18 The activities of appellant Smith vis-a-vis the ACLU are very 
similar to the “solicitation” upheld by this Court in Button. As she 
urgeda in her Jurisdictional Statement, that case certainly appears to 
control the outcome in her appeal.



30

of the benefits that this Court gave to consumers in Bates, 
especially with respect to the development of alternative 
legal service delivery systems. 19

Against these benefits, the justifications that are tradi­
tionally offered to support solicitation prohibitions are 
woefully inadequate, and most are not even properly cog­
nizable. The most frequently offered justification is that 
solicitation is improper because it undermines the dignity 
of the legal profession. This emotional, non-analytical as­
sertion is steeped in rhetoric and tradition rather than 
based on a genuine concern for the legitimate needs of 
the public. Moreover, as the Court recognized in Bates, 
an argument based on “dignity” is itself misleading be­
cause it seeks to mask the fact that lawyers are motivated 
by financial incentives like other business men and women. 
Slip op. at 16-20, 45 U.S.L.W. at 4900-01. It has also 
been argued that solicitation prohibitions are justified be­
cause they prevent litigation that would not otherwise be 
commenced. The presumption that litigation is somehow 
bad in and of itself, however, is inconsistent with the 
many cases that have found litigation to be a form of ex­
pression and an exercise of the right to petition protected 
by the First Amendment. See pages 28-29, above. Conse­
quently, this Court also rejected that offered justification 
in Bates. Slip op. at 23-25, 45 U.S.L.W. at 4900-01

The justification that solicitation prohibitions prevent 
client stealing is also inadequate. This is a justification 
furthering the economic interests of lawyers at the expense

19 One of the reasons that this provision is so broad is that it 
uses the terms “assisting to promote” and “cooperate with” as if they 
were synonymous. The language of this section has now been amend­
ed in the ABA Code. However, even under the new language, all of 
the actions described herein would still be prohibited.



31

of competitive benefits to consumers. As amici have re­
peatedly emphasized, solicitation rules are for the protec­
tion of consumers not lawyers -  and consumer interests 
should be given primary consideration in determining 
their validity. Solicitation rules are also unable to be jus­
tified by the assertion that they help to prevent abuses 
that can occur when lawyers meet with clients behind 
closed doors. They simply are not directed at such 
abuses which can occur independently of who initiates 
the contact.

Finally, the claim that a total prohibition on all soli­
citation is necessary because of the difficulties of appli­
cation to individual cases cannot suffice. This justifica­
tion not only makes the rules amenable to abuse, as 
the Smith case demonstrates, but it flies directly in the 
face of the First Amendment’s least restrictive alterna­
tive requirement. Moreover, the Bar’s argument that wide 
latitude is necessary to prevent unsophisticated consumers 
of legal services from being abused by lawyers is incon­
sistent with its “professionalism” justification. The Bar 
may portray attorneys as pillars of virtue and altruism, or 
as scoundrels ready to pounce on unsuspecting members 
of the public, but not both. This Court pointed out that 
contradiction in Bates when it rejected the difficulties-of- 
enforcement justification, and that contradiction is equally 
present in the solicitation context as well. Slip op. at 27, 
45 U.S.L.W. at 4903.



32

C. Many Narrowly Drawn, Less Restrictive Alter­
natives Are Available To Guard Against Any 
Abuses That Might Result From Solicitation.

There is one legitimate justification for solicitation rules: 
to prevent overreaching and duress that can result when 
a potential client is in a situation where his or her judg­
ment might be impaired. The exceptions to the general 
solicitation ban in fact suggest that this is one of the 
interests of underlying solicitation rules. DR 2-104 gen­
erally prohibits a lawyer from accepting employment by one 
to whom he or she has given unsolicited advice, but that does 
not apply to family, friends, and established clients, pre­
sumably because a lawyer will not take advantage of these 
classes of individuals. DR 2-104(A)(1). It is also common 
knowledge that solicitation occurs at country' clubs and other 
civic and social settings, see Bates v. State Bar o f  Arizona, supra, 
slip op. at 19, 45 U.S.L.W. at 4901, but no one is es­
pecially troubled by this since the lawyer and the poten­
tial clients typically deal at arms length in such contexts, 
and the clients are considered able to fend for themselves.

Amici agree that the prevention of undue influence, dur­
ess, and overreaching are important consumer interests, but 
they should be dealt with directly through narrowly tailored 
rules rather than through overbroad prohibitions. It would 
be more prudent — and consistent with the First Amend­
ment — to develop solicitation rules that are specifically 
directed at the problem of undue influence. Although 
First Amendment protections would continue to apply to 
solicitation, narrowly drawn rules would survive the First 
Amendment balancing test and could, therefore, be upheld 
as constitutional.

In contexts such as that of the Smith case, where an at­
torney approaches an individual on behalf of an organization



33

out of a sense of duty to assist that person in asserting his 
or her rights, the dangers nearly vanish. Potential clients in 
such contexts are more like friends and relatives who are 
presently exempted from the solicitation prohibition set 
out in DR 2-104. See DR 2-104(A)(l). Because of the 
strong identity of interest between the lawyer, the organ­
ization, and the potential client, only very minimal regula­
tion of the transaction is necessary. This Court has also 
emphasized that identity of interest is a constitutionally 
significant factor in invalidating solicitation rules that might 
otherwise be upheld. N A A C P  v. B u tton , supra, 371 U.S. 
at 4 4 3 . Moreover, because solicitation on behalf of an or­
ganization like the ACLU is not commercial in nature, full 
First Amendment protections apply.20

20 in Bates, the Court stated that the overbreadth doctrine applied 
weakly if at all to commercial speech and as a result, a plaintiff could 
not merely demonstrate that some protected speech was prohibited by 
the challenged regulation but had to show that his or her speech was 
itself protected as well. Slip op. at 29, 45 U.S.L.W. at 4903. In the 
Smith context, however, there is a pressing need to apply the over­
breadth doctrine because the in terrorem, chilling effect that the over­
breadth doctrine is intended to prevent is ominously present.

In Virginia State Board o f  Pharmacy v. Virginia Citizens Consumer 
Council, supra, 425 U.S. at 771-72, n.24, the Court suggested that the 
long standing First Amendment prohibition on prior restraints might 
also be inapplicable in commercial speech contexts. However, the 
need to revitalize the prior restraint doctrine in the solicitation con­
text is apparent. Often speed in learning about one’s legal rights is 
essential if meaningful redress is to be obtained. See EC 2-2. Moreover, 
from the consumer’s point of view, solicitation prohibitions are prior 
restraints in the fullest meaning of the term. Because solicitation rules 
operate on parties over whom consumers have no control (members of 
the Bar), consumers cannot even risk violating those rules at their peril. 
Thus, they are completely at the mercy of the lawyers to whom soli­
citation rules apply.



34

In commercial contexts more traditionally associated with 
solicitation, such as the circumstances of the Ohralik case, 
the dangers of undue influence may be more pronounced. 
However, several alternatives which are less restrictive than 
a total prohibition on solicitation are available to guard 
against this danger. For example, lawyers could be required 
to confirm their employment contracts in writing within a 
specified period of time after the initial retention. This 
would allow newly obtained clients to reflect upon their 
initial employment decisions, to ask more questions, to seek 
other advice, or merely to have a change of heart. Such a 
confirmation requirement would avoid extended periods of 
ambiguity, such as the one month period during which ap­
pellant Ohralik believed himself to be representing Wanda 
but Wanda apparently believed that he had been discharged. 
Moreover, a confirmation requirement would place soliciting 
attorneys on notice that their employment contracts were 
subject to unilateral rescission so that they would not need­
lessly expend non-essential time on a case at its early stages. 
Another alternative is to prescribe a “cooling-off’ period 
during which a solicited client has an absolute right to re­
scind the employment contract with no financial obligation. 
Again, the lawyer would be on notice not to provide non- 
essential legal services during this “cooling-off’ period.

Soliciting attorneys could also be required to advise their 
clients at the time of the solicitation of their right to re­
scind their employment agreements if the clients became dis­
satisfied with their attorneys’ representation. The Ohralik 
case suggests that once Carol and Wanda became dissatisfied, 
they may nevertheless have felt tied into their earlier agree­
ments. An affirmative disclosure of the right to discharge 
counsel would eliminate this misimpression. After such a 
rescission, which could occur at any time, the attorney



35

would be compensated on a quantum meruit basis for the 
reasonable value of the services already rendered.

Finally, the Court in Bates emphasized that prohibitions 
on false, deceptive, and misleading advertising were proper. 
Slip op. at 31, 45 U.S.L.W. at 4904. Moreover, in Vir­
gil ia State Board o f  Pharmacy v. Virginia Citizens Con­
sumer Council, supra, 748 U.S. at 771, the Court recog­
nized that certain time, place, and manner restrictions could 
serve as valid restraints on commercial advertising. This 
suggests that restrictions on the settings in which solicita­
tion can occur would be upheld if closely enough associa­
ted to the danger of undue influence. Consequently, a 
rebuttable presumption that solicitation at the scene of an 
accident or in a hospital involves undue influence might 
be sustainable since it shifts to the attorney the burden 
of justifying his or her actions. However, since many in­
dividuals would retain their independence and unimpaired 
judgment in such settings, an irrebuttable presumption 
probably could not withstand constitutional scrutiny.

It is, of course, not the duty of litigants or of this 
Court to draft acceptable rules for the Bar to use in regula­
ting solicitation. Nevertheless, the suggested alternatives 
indicate that the beneficial flow of information that ac­
companies solicitation can be preserved while minimizing 
the dangers of undue influence. Consequently, those 
alternatives are preferable to the Bar’s . current prohibition 
of all solicitation. The organized bar has already tried 
extensive regulation of advertising and solicitation, and it 
has not proven to be in the consumers’ best interest. Now 
it is time to experiment with minimal regulation in this 
area to see whether consumers will fare any better. By 
proscribing only those activities that are likely to cause 
some harm, the benefits of adequate information flow will



36

be fostered. If problems do arise, the legal profession can 
fashion remedies to deal with those demonstrated problems 
rather than with speculative, theoretical ones. Freer ex­
perimentation in this area is not only suggested by prud­
ence but is compelled by the Constitution.21

III. THE CONDUCT OF EACH APPELLANT IS 
PROTECTED BY THE FIRST AMENDMENT.

As a result of this Court’s ruling in Bates, it is not suf­
ficient in the commercial speech context to demonstrate 
that a disciplinary rule is overbroad. An appellant must 
also demonstrate that his or her particular conduct is pro­
tected. Slip op. at 29, 45 U.S.L.W. at 4903. However, 
both appellants are able to make that showing in the 
present appeals.

As amici noted above at pages 32-33, appellant Smith’s 
actions were not financially motivated, and she did not 
stand to benefit financially from those actions. Rather, 
she was attempting to advise a disadvantaged individual of 
her legal rights and to assist her in asserting those rights. 
Consequently, Ms. Smith’s actions did not constitute com­
mercial speech, and she is, therefore, entitled to the full 
protection of the First Amendment. Moreover, her actions 
fall well within the sphere of activities to which this

91 Better reasoned approaches to solicitation are already begin­
ning. On November 9, 1976, the Board of Governors of the Dis­
trict of Columbia Bar approved, and recommended that the Dis­
trict of Columbia Court of Appeals adopt, changes in Canon 2 that 
would permit the types of solicitation at issue in the present ap­
peals. Moreover, in response to Bates, the ABA drafted two pro­
posed modifications to Canon 2. Although the more restrictive 
BfttpmaT A  was adopted*, Pmpvsat B, whiefcwould also ailow the-



37

Court has consistently accorded First Amendment protec­
tions. Not only was Ms. Smith’s freedom of speech at 
stake, but her right to associate with the ACLU, and to 
pursue their common objectives through litigation, was 
also involved. The facts of the Smith case closely parallel 
the facts in NAACP v. Button, supra, in which this Court 
upheld the First Amendment right of the NAACP to 
“solicit” plaintiffs for school desegregation suits after re­
cognizing the same rights of expression and petition that 
are at issue here. Button  and its progeny, see pages 28-29, 
above, control the Smith appeal and unambiguously 
establish that appellant Smith’s activities are protected by 
the First Amendment.

Although appellant Ohralik’s actions appear to comprise 
commercial speech, they are, nevertheless, protected by the 
First Amendment. Mr. Ohralik was not charged with fraud 
or misrepresentation so that he is not disqualified from 
First Amendment protection for either of those reasons. 
Moreover, the disciplinary tribunals made no findings of 
duress, overreaching, or undue influence, so that the ration­
ale underlying solicitation rules does not cut off First 
Amendment protections either. While the record does 
show that appellant Ohralik’s clients became dissatisfied 
with his representation, he was not charged with violation 
of any of the ethical provisions regulating the manner of 
client representation or the reasonableness of his fees.
The Ohio Board of Commissioners on Grievances and 
Discipline instead chose to charge him with solicitation. 
Since appellant Ohralik was not found to have committed 
any of the evils to which properly drawn solicitation rules 
would be directed, his actions too are protected by the 
First Amendment.



38

CONCLUSION

The present ban on solicitation by attorneys unnecessarily 
deprives consumers of information about their legal rights and 
and the availability of attorneys to assert those rights. Be­
cause many less restrictive alternatives exist which can min­
imize any legitimate dangers, while preserving the beneficial 
flow of information to consumers, a total prohibition on 
all solicitation cannot withstand First Amendment scrutiny. 
Moreover, because the particular actions of the appellants 
who were charged with violating those rules are protected 
by the First Amendment, this Court should set aside the 
disciplinary orders of the State Supreme Courts below.

Respectfully submitted,

GIRARDEAU A. SPANN
ALAN B. MORRISON

Suite 700
2000 P Street, N.W.
Washington, D.C. 20036
(202) 785-3704

Attorneys for Amici Curiae

November 17, 1977



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