Smith v USA Jurisdictional Statement

    IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1977

No. 77-

IN THE MATTER OF EDNA SMITH,
Appellant.

ON APPEAL FROM THE 
SUPREME COURT OF THE 

STATE OF SOUTH CAROLINA

JURISDICTIONAL STATEMENT

Laughlin McDonald 
Neil Bradley 
Christopher Coates 
52 Fairlie St., N.W. 
Atlanta, Georgia 30303
ATTORNEYS FOR 

APPELLANT
American Civil Liberties Union 

Foundation, Inc.

Ray P. McClain 
Charleston, S.C.



Page
Jurisdictional Statement..............  1
Opinions Below........................  2
Jurisdiction..........................  3
Constitutional and Statutory

Provisions Involved................  4
Questions Presented...................  5
Statement of the Case................  6
The Questions are Substantial......... 10
Conclusion............................  25
Appendix:

Opinion of the Supreme Court
of South Carolina...............  la

Panel Report, Board of Commission­
ers on Grievances and Discipline. 15a

Constitutional and Other Provisions
Involved.........................  18a

Complaint before Board of Commis­
sioners on Grievances and 
Discipline.......................  23a

TABLE OF CONTENTS

l



Page

Notice of Appeal to the Supreme 
Court of the United States.... 27a

Order of the United States 
Court of Appeals for the 
Fourth Circuit................  28a

n



TABLE OF AUTHORITIES
Cases Pages
Allen v. School Board of Char­
lottesville, 249 F.2d 462 (4th
Cir. 1957)--------------------- 19

American Civil Liberties Union 
v. Bozardt, 539 F.2d 340 (4th
Cir. 1976)--------------------- 2
Bantam Books, Inc. v. Sullivan,
372 U.S. 58 (1963)---------- .—  3

Bates v. State Bar of Arizona,
45 U.S.L.W. 4895 (1977)------- 3,5,14,17

Bell v. School Board of Powhatan 
County, VA., 321 F.2d 494 (4th
Cir. 1963)--------------------- 19
Belli v. State Bar, 10 Cal3d 824
(1974)------------------------- 18

In re Bloom, 265 S.C. 86, 217
SE2d 143 (1975)---------------  16

Brotherhood of Railroad Trainmen 
v. Virginia, 377 U.S. 1 (1964)—  20
County School Board v. Thompson,
240 F.2d 59 (4th Cir. 1956)--- 19

Doe v. Pierce, No. 74-475 (D.S.C.
1974)-------------------------- 8, 9, 25

In re Gault, 387 U.S. 1 (1967)—  24
In re Griffiths, 413 U.S. 717
(1973)------------------------- 3

Jacoby v. California State Bar,
45 U.S.L.W. 2529 (Ca. 1977)---  17

NAACP v. Button, 371 U.S. 415
(1963)------------------------- passim

In re Ruffalo, 390 U.S. 544 (1968) 5, 24
Thompson v. City of Louisville,
362 U.S. 199 (1960)-----------  5, 24, 25

United Mine Workers v. Illinois 
State Bar Association, 389 U.S.
217 (1967)--------------------- 20

iii



Cases Pages
United Transportation Union v.
State Bar of Michigan, 401 U.S.
576 (1971)--------------------- 21

Wolff v. McDonnell, 418 U.S. 539 
(1974)----------------------  24

Other
28 U.S.C. §1257 (2)------------ 3
28 U.S.C. §2103--------------- 5
Civil Rights Attorney's Fees Awards 
Act of 1976, 5 U.S. Code Congres­
sional & Admin. Nev;s, 5908 (1976)- 20
Disciplinary Rules 2-103(d)- passim
Disciplinary Rules 2-104(A)(2)(5) passim
61 ABA Jo. 464 (1975)--------- 16
Smith, "Canon 2: 'A Lawyer Should
Assist the Legal Profession in its 
Duty to Make Legal Counsel Avail­
able,'" 48 Tex.L.Rev. 285 (1970)- 16, 23
"3 Carolina Doctors Are Under 
Inquiry in Sterilization of Wel­
fare Mothers", New York Times,
July 22, 1973, p. 30----------  7

IV



IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1977

In the Matter of )
)Edna Smith, )
)________Appellant. )

JURISDICTIONAL STATEMENT

Appellant appeals from the order of the Supreme Court of South Carolina entered 
March 17, 1977, which order publicly repri­
manded appellant for allegedly unethical 
conduct. This disciplinary proceeding against 
a member of the bar of the State of South 
Carolina was initiated as an administrative 
proceeding. The complaint asserted no juris­
dictional statute but only that appellant 
committed an "act of misconduct or has indulged 
in ... [a] practice which tends to pollute
the administration of justice or to bring 
the legal profession or the courts into dis­
repute", constituting "solicitation in vio­
lation of the Canons of Ethics. 1,1

1. The full complaint and letter on 
which the complaint is based are apDended hereto at 23a.



2

OPINIONS BELOW

The opinion of the Supreme Court of 
South Carolina is reported at S.C. ,
233 S.E.2d 301 (1977), and is appended 
hereto at la. The report by a three-member 
panel of the Board of Commissioners on 
Grievances and Discipline of the Supreme 
Court of South Carolina recommending a pri­
vate reprimand is unreported and is appended 
hereto at 15a. This recommendation was 
affirmed and a private reprimand administered 
orally on January 9, 1976, by the full Board 
of Commissioners.

Appellant, by an action in the federal 
district court, attempted to enjoin the dis­
ciplinary proceedings ab initio. That action 
was dismissed by the district court without 
reaching the merits, and the dismissal was 
affirroed on appeal by the United States Court 
of Appeals, American Civil Liberties Union v. 
Bozardt, 539 F.2d 340 (4th Cir. 1976).
Three judges dissented from denial of a peti­
tion for rehearing en banc in an unreported 
opinion appended hereto at 28a. This Court denied certiorari, U.S. ,97 S.Ct.639 (1976). ---



3

JURISDICTION
A disciplinary complaint was issued 

naming appellant as respondent on October 
9, 1974, by the Secretary of the Board of 
Commissioners on Grievances and Discipline 
of the South Carolina Supreme Court. On 
January 9, 1976, the Board issued a private 
reprimand to appellant. Acting on appellant's 
petition to expunge the private reprimand, 
and with no cross-petition to increase the 
punishment, the Supreme Court of South Caro­
lina, sua sponte, administered a public 
reprimand to appellant on March 17, 1977.

Appellant had defended the allegations 
against her on the grounds that she was en­
gaged in constitutionally protected free 
speech and associational activities and that 
the procedures denied her due process of law.
The Supreme Court of South Carolina issued the 
public reprimand construing certain Disciplinary 
Rules to apply to her conduct and holding the 
Rules and the procedures by which punishment 
was rendered to be constitutionally valid as applied to appellant.

A notice of appeal was filed in the 
Supreme Court of South Carolina on April 15, 
1977. 27a. By order dated June 15, 1977, the 
Chief Justice extended the time for docketing this appeal through July 11, 1977.

This Court has jurisdiction to consider 
this appeal by virtue of 28 U.S.C. §1257(2).
The following cases sustain the jurisdiction 
of this Court: Bates v. State Bar of Arizona.
45 U.S.L.W. 4895 (1977); In re Griffiths, 413 
U.S. 717 (1973); Bantam Books, Inc. v. Sullivan. 372 U.S. 58, 61, n." 3 (1963) .------------------



4
CONSTITUTIONAL AND STATUTORY 

PROVISIONS INVOLVED
The constitutional and statutory pro­

visions involved in this case are set forth 
in full in the appendix, infra, at 18a, as 
follows:

United States Constitution,
Amendment One
United States Constitution,
Amendment Fourteen, §1
Supreme Court of South Carolina,
Rule on Disciplinary Procedure, §4
American Bar Association, Code 
of Professional Responsibility, 
Disciplinary Rule 2-103(D), 
adopted by the Supreme Court of 
South Carolina
American Bar Association, Code 
of Professional Responsibility, 
Disciplinary Rule 2-104(a), 
adopted by the Supreme Court of South Carolina.



5

QUESTIONS PRESENTED1

I. Whether the disciplinary rules as 
construed and applied to appellant are vague 
and overbroad and encroach upon first amend­
ment associational activity by prohibiting 
attorneys from offering the services of the 
American Civil Liberties Union.

II. Whether the decision is in conflict 
with NAACP v. Button, 371 U.S. 415 (1963), 
and subsequent cases, which held that collec­
tive activity to assure meaningful access to 
the courts is protected by the first amendment 
unless the state demonstrates a compelling 
interest in support of the particular narrowly 
drawn regulation. Bates v. State Bar of Arizona, 45 U.S.L.W. 4895 (1977).

III. Whether the decision below conflicts 
with In re Ruffalo, 390 U.S. 544 (1968), in 
that the charges of which the appellant had 
notice did not state all the elements of the 
violations found after the hearing.

IV. Whether the decision is in conflict 
with Thompson v. City of Louisville, 362 U.S.
199 (1960), in that there was no evidence nor 
findings to establish all the elements of the 
disciplinary rules found to be violated.

1. To the extent that the questions pre­
sented are more properly raised by a petition 
for certiorari, appellant requests that these 
papers be so treated. 28 U.S.C. §2103.



6

STATEMENT OF THE CASE

This matter is a professional disciplinary 
proceeding formally initiated on October 9,
1974. The complaint issued by the State Board 
of Commissioners on Grievances and Discipline 
alleged that appellant had committed "solici­
tation in violation of the Canons of Ethics" 
by writing a letter on August 30, 1973, which 
offered the services of the American Civil 
Liberties Union (ACLU). Appellant denied 
(and has throughout these proceedings denied) 
that she had committed "solicitation" and 
alleged other defenses, including the vague­
ness of the State rules and the protected 
associational character of her conduct.

A panel of the Board of Commissioners 
held a hearing on the Complaint on March 20,
1975. The panel filed a report recommending 
that appellant be found to have violated the 
Canons of Ethics for soliciting a client on 
behalf of the ACLU, not on behalf of herself. 
The panel recommended a private reprimand as 
discipline. After a hearing on January 9,
1976. the Board of Commissioners approved 
the panel report and administered the private reprimand.

Appellant petitioned the South Carolina 
Supreme Court to review and expunge the pri- 
vate reprimand. Review was granted. There 
was no cross-petition seeking an increased 
penalty, yet on March 17, 1977, the South 
Carolina Supreme Court entered its order 
adopting the panel report and, sua sponte, 
increasing the discipline administered from 
a private reprimand to a public reprimand.



7

Appellant is a black woman who was ad­
mitted to the South Carolina Bar in September, 
1972. She is active in the ACLU of South Carolina.

In 1973, local and national newspapers 
reported that certain pregnant mothers on 
welfare in Aiken County, South Carolina, most 
of whom were black, were being sterilized or 
threatened with sterilization as a condition 
for continuing to receive Medicaid assistance. 
See "3 Carolina Doctors Are Under Inquiry 
in Sterilization of Welfare Mothers," New 
York Times, July 22, 1973, p. 30. Mr.~lGary 
Allen, who was active in a number of community 
organizations, knew some of the Medicaid 
patients who had been sterilized. A local 
organization to which Mr. Allen belonged con­
tacted appellant through the South Carolina 
Council on Human Rights, a private, non­
profit organization, with which appellant was 
also associated, to request advice and assis­
tance on behalf of the welfare mothers. In 
response to the request, appellant went to 
Aiken, where she met with Mr. Allen and with 
three women who had been sterilized in Aiken 
County, including Mrs. Williams, the subject 
of the alleged solicitation.

Following the Aiken meeting, appellant 
received several telephone calls and a letter 
from Mr. Allen, advising her that Mrs. Williams 
wished to bring suit, and appellant was re­
quested by Mr. Allen to write to Mrs. Williams* 1

1. Mrs. Williams testified that she had 
not told Mr. Allen she wanted to bring suit; 
however, the uncontradicted testimony of ap­
pellant and Mr. Allen was that Mr. Allen had 
so advised her, and the tribunals below made 
no finding discounting this testimony.



8

In response to this request, appellant 
wrote the letter of August 30, 1973, that 
is the subject of this proceeding. The 
letter contained the following paragraph, 
by which appellant was found to have com­
mitted "solicitation":

You will probably remember me from 
talking with you at Mr. Allen's 
office in July about the sterili­
zation performed on you. The 
American Civil Liberties Union 
would like to file a lawsuit on 
your behalf for money against the 
doctor who performed the operation. 
We will be coming to Aiken in the 
near future and would like to 
explain what is involved so you 
can understand what is going on.
Mrs. Williams, shortly after receiving 

this letter, went to Dr. Pierce's office for 
treatment for her child. Dr. Pierce's 
attorney was present, read the letter, and 
questioned her about litigation against his 
client. Mrs. Williams disclaimed any interest 
in a lawsuit, and at the attorney's direction 
called appellant from Dr. Pierce's office to 
so inform her. Appellant never made any effort 
to contact Mrs. Williams further. Two women 
subsequently sued Dr. Pierce, Doe v. Pierce,
No. 74-475 (D.S.C. 1974), but neither were 
represented by appellant or her associate employed by the ACLU.l 1

1. The letter to Mrs. Williams had been 
in the possession of Dr. Pierce's attorney 
since August of 1973, and was known to the 
South Carolina Assistant Attorney Genera], who 
represented other defendants in Doe v. Pierce, 
(footnote continued to next page)



9

The factual basis for the public repri­
mand issued Petitioner is as follows:

The evidence is inconclusive as to 
whether the Respondent solicited 
Mrs. Williams on her own.behalf, 
but she did solicit Mrs. Williams 
on behalf of the ACLU, which would 
benefit financially in the event 
of successful prosecution of the 
suit for money damages. 6a.
[The only way in which the ACLU 
would possibly receive financial 
benefit would be by receipt of a 
court award of attorney's fees.]

This was held to be in violation of two Dis­
ciplinary Rules:

(1) Disciplinary Rule 2-103(D), which, 
by its terms, solely prohibits an attorney 
from "knowingly assist[ing] a person or 
organization ... to promote the use of his 
services or those of his partners or asso­
ciates." There was no finding that appellant 
or the ACLU ever promoted the use of her own
(footnote continued from preceding page) 
in early April, 1974; however, the Attorney 
General did not forward the letter to the Board 
on Grievances and Discipline until August 19, 
1974, after an attempt to have Doe v. Pierce 
dismissed for solicitation proved unsuccessful. 
The letter was forwarded by A. Camden Lewis, 
an attorney herein and for certain defendants 
in Doe v. Pierce.



10

professional services, or those of her associates.
(2) Disciplinary Rule 2-104(A), which, 

by its terms, states that an attorney who has 
given unsolicited advice "shall not accept 
employment resulting from that advice." There 
was never even any contention that appellant 
or anyone else accepted employment by Mrs. Williams.

Appellant raised the federal questions 
of her constitutional defenses in the answer 
and amended supplemental answer to the com­
plaint. They were raised as exceptions in 
the petition for review filed with the State 
Supreme Court, pp. 2-3, and as questions pre­
sented in the brief on the merits to that 
court, pp. 1-2. See also, la-2a.

The Supreme Court of South Carolina found, 
by its adoption of the commission report, the 
evidence sufficient under the recited rules. This appeal followed.

THE QUESTIONS ARE SUBSTANTIAL 
I

The Disciplinary Rules as construed, 
and as applied to appellant, are 
vague and overbroad in violation of 
the First Amendment and the Due Pro­cess Clause.
Edna Smith, appellant here, has been dis­

ciplined by the South Carolina Supreme Court 
for offering, gratis and at the express request



11

of another, the services of the ACLU to a 
person whom Ms. Smith had talked with earlier 
and whom Ms. Smith believed had a valid cause 
of action. Her conduct was wholly consistent 
with Canon 2 of the Code of Professional 
Rsponsibility,1 and indistinguishable from 
the conduct of the attorneys offering the 
assistance of the NAACP in NAACP v. Button, 
371 U.S. 415 (1963). Instead of taking the 
disciplinary rules at their face value and 
taking care to avoid trenching on constitu­
tionally protected activity, the court below 
gave the rules a novel construction far 
beyond their obvious meaning and far beyond 
the contemplation of those who drafted the 
rules. The result is not only to punish ap­
pellant for engaging in protected activity 
but also to chill citizens in the exercise 
of their constitutional rights by putting 
lawyers on notice that the disciplinary 
rules —  their narrow terms notwithstanding—  
can be applied to the most time-honored 
traditions of advising citizens of their 
rights and of the availability of counsel.

The South Carolina Supreme Court by con­
struing the disciplinary rules to cover pro­
tected activity, has rendered those rules 
necessarily vague and overbroad.

The decision below not only squarely 
contradicts this Court's decision in NAACP 
v. Button, 371 U.S. 415 (1963), and inflicts 1

1. "A lawyer should assist the legal 
profession in fulfilling its duty to make 
legal counsel available." See also Discipli­
nary Rules 2-104(A)(2).



12

personal obloquy upon appellant; if upheld, 
it also threatens to impair the legal 
assistance activities on behalf of civil 
liberties of the American Civil Liberties 
Union and its affiliated organizations. The 
ACLU, which is the oldest and largest organi­
zation in the nation devoted exclusively to 
the cause of civil liberties,1 has for years 
stated frankly in The Guide for ACLU Liti­
gation, If 5, that:

It is not necessary to await 
clients seeking out the Union; it 
is often better for the Union to 
take the initiative in civil liber­
ties cases. NAACP v. Button, 371 
U.S. 415 (1963), provides that 
organizations need not stand by 
while potential litigants forfeit 
through ignorance their constitu­
tional rights. An organization 
with our purposes can thus advise 
people that it will handle cases 
for them.
The ACLU's opinion of its function is 

widely shared. Referring to the activities 
of appellant regarding the origin of Doe v. 
Pierce, the case subsequently filed on the 
Aiken sterilizations, the Honorable Sol Blatt, 
Jr., United States District Judge for the 
District of South Carolina, made the following 1

1. See NAACP v. Button, 371 U.S. 415, 
440, n. 19 (1963).



13

statement at a hearing on September 24, 1974i 1

This Court feels in its posture 
of [sic] the American Civil Liber­
ties Union has a duty and an obli­
gation under the manner in which 
it operates to seek out and help 
those who it feels are not able to 
help themselves, either their lack 
of knowledge or lack of funds, the 
Court finds no fault with the 
situation out of which this suit 
arose with the attorneys connected 
with the ACLU, m  contacting, if 
that in fact did happen. . .
(Emphasis supplied.)
Deposition of Mary Roe (Shirley 
Brown), Doe v. Pierce, No. 74-475 
(D.S.C. 1974)(Sept. 24, 1974, p. 23).

Obviously, if the decision below is sustained, 
the ACLU and countless other legal assistance

1. Three judges of the United States 
Court of Appeals for the Fourth Circuit reached 
a similar conclusion, 33a:

The services of ACLU— assisting lay 
persons to recognize their legal 
rights and making counsel available-- 
are the very services for which the 
individual plaintiff is sought to be 
disciplined and they are constitu­
tionally protected activities.



14

organizations-*- will be barred from affirma­
tively offering assistance to the poor and 
untutored. It was precisely the importance 
of protecting associational activity to 
foster meaningful access to the courts that 
guided this Court to the result of NAACP v. 
Button, supra, 371 U.S. at 429-31. See,
Bates v. State Bar of Arizona, 45 L.W. 4895, 
4902 n. 32 (1977). To affirm summarily this 
judgment would be to decide, without plenary 
consideration by this Court, that Button is 
overruled, in a decision binding upon courts 
throughout the nation, and endorsing a most 
expansive construction of these Disciplinary 
Rules, which have been adopted in most states.

In Button, the NAACP paid modest at­
torney's fees to its staff and cooperating 
attorneys in connection with desegregation 
lawsuits. The organization also sent these 
same attorneys to meetings of parents to 
encourage desegregation lawsuits. This Court held that activity to be protected, in a 
doctrine recently summarized in the Bates 
opinion, supra at note 32:

The Court often has recognized 
that collective activity under­
taken to obtain meaningful access 1
1. The approach adopted in this case 

could be applied to the activities of the 
National Right to Work Defense Fund; the NAACP 
Legal Defense and Education Fund, Inc.; the 
Mexican-American Legal Defense and Education 
Fund; the Sierra Club Legal Defense Fund; the 
Natural Resources Defense Council; the National 
Chamber Litigation Center (U.S. Chamber of 
Commerce); the Puerto Rican Legal Defense and 
Education Fund; and the Native American Rights Fund, to name only a few.



15

to the courts is protected under 
the First Amendment. See United 
Transportation Union v. State 
Bar of Michigan, 401 U.S. 576,
585 (1971); United Mine Workers v. 
Illinois State Bar Ass'n, 389 U.S.
217, 222-224 (1967); Brotherhood 
of Railroad Trainmen v. Virginia 
Bar, 377 U.S. 1, 7 (1964); NAACP 
v. Button, 371 U.S. 415, 438-440 
(1963). It would be difficult to 
understand these cases if a law­
suit were somehow viewed as an 
evil in itself. Underlying them 
was the Court's concern that the 
aggrieved receive information 
regarding their legal rights and 
the means of effectuating them.
A. Vagueness. The fundamental error 

of the State Court construction is apparent 
from the Court's own statement of its findings:

...that [Appellant] had violated 
Disciplinary Rules 2-103 (D) (5) (a) 
and (c) and 2-104(A)(5) of the Code 
of Professional Responsibility by 
soliciting a client on behalf of 
the American Civil Liberties Union.la.

The State Court expressly declined to find 
that appellant had solicited the client on 
her own behalf. The prospective client never accepted the offer of assistance.



16

The most thorough examination of the 
cited Disciplinary Rules, 18a, will fail to 
disclose any provision of either rule that, 
on its face, prohibits an attorney from 
offering the legal assistance of an organiza­
tion. DR 2-103(D) prohibits an attorney from 
allowing an organization to promote his own 
services —  nowhere does it appear that the 
Rule prohibits an attorney from offering the 
services of an organization, where there is 
neither allegation nor proof that the organiza­
tion promoted the services of any particular 
attorney.^ dr 2-104(A) prohibits an attorney 
from accepting employment, with certain excep­
tions. It gives no notice whatsoever, much 
less the fair notice required for due process 
of law, that it prohibits an attorney from 
offering the services of an organization to 
a person who never employed any counsel.2

1. This section was drafted by the ABA 
to regulate group legal services and not the 
type organization considered in NAACP v. Button 
See, Smith, "Canon 2: "'A Lawyer Should Assist 
the Legal Profession in its Duty to Make Legal 
Counsel Available.'" 48 Tex.L.Rev. 285, 306-10 
(1970). The American Bar Association has sub­
stantially rewritten this section so that it 
now approves more explicitly the activities of 
pre-paid group legal services. 61 ABA Jo. 464 
(1975).

2. Again with regard to notice, it should 
be pointed out that the ethical strictures on 
solicitation had received little enforcement in 
South Carolina prior to July, 1975. See, In re 
Bloom, 265 S.C. 86, 217 SE2d 143 (1975).



17

The only logical interpretation that 
appellant's counsel have been able to place 
upon the decision below is that the State 
Court adopted a general notion of "solici­
tation" that included any offer of legal 
services, whether or not specifically pro­
hibited by the Disciplinary Rules, and then 
looked to DR 2-103(D)(1)-(5) for a definition 
of organizations authorized to offer legal 
services. If this was the approach below, it 
suffered the vice of vagueness on two counts:
(1) the rules did not give fair notice of 
the definition of "solicitation" adopted, and
(2) the rules did not give fair notice of the 
court's draconian construction of the exemptions.

B. Overbreadth. In Bates v. State Bar 
of Arizona, supra, 45 U.S.L.W. at 4903, a bar 
disciplinary proceeding, this Court recently 
reaffirmed the proper application of the 
doctrine of overbreadth as applied to pro­
tected (non-commercial) speech:

First Amendment interests are 
fragile interests, and a person 
who contemplates protected acti­
vity might be discouraged by the 
in terrorem effect of the statute.
See NAACP v. Button, 371 U.S. 415,433 ( 1963).

Appellant submits that the Supreme Court of 
California has adopted the correct standard 
as to whether a communication about obtaining 
legal services is presumptively protected: 
that the communication has any discernable 
purpose in addition to attracting business 
for the attorney's private law practice.
Jacoby v. California State Bar, 45 U.S.L.W.



18

2529 (Ca. 1977); Belli v. State Bar, 10 CaL3d 
824 (1974). Of course, measured by this 
standard, appellant's offer of the assistance 
of an organization was presumptively protected, and it therefore fell to the state to demon­
strate both (1) that the state had a compelling 
interest in punishing the communication and 
(2) that the statute prohibiting the conduct 
was so narrowly drawn as not to be applicable to protected activity.

Instead of narrowly construing its Dis­
ciplinary Rules, the State Court construed 
them to .prohibit any attorney from offering 
the services of any organization that has 
either of the following characteristics:

(1) the organization has as a "pri­
mary purpose,"1 [here construed' as 
any major activity of the organiza­
tion] the provision of legal services; and
(2) the organization at any time, 
in any proceeding, prays for attor­
neys' fees awarded by a court against a defendant.

1. There was testimony in the record to 
the effect that the purpose of the ACLU is to 
protect civil liberties, and to this end it 
engages, as did the NAACP, in Button, in public 
education, in legislative lobbying, and in 
litigation. The lack of fundamental fairness 
in the proceeding below was illustrated by the 
treatment of the issue of the purpose of the 
(footnote continued to next page)



19

By these tests, the activity in Button, 
where the NAACP sent staff attorneys to 
meetings of parents to encourage school de­
segregation lawsuits, and paid modest fees 
to the attorneys for any lawsuits brought, 
was not protected.-*- Furthermore, under this 1

(footnote continued from preceding page)
ACLU. The Grievance Board curtailed appel­
lant's attempts to describe the purposes of 
the ACLU, stating, "I don't think the under­
lying purposes of the American Civil Liberties 
Union really is germane to this inquirey [sic] 
at all." The Board and the Supreme Court, 
then, proceeded to rely on their own inter­
pretation of the "primary purpose" of the 
organization as a crucial element in sustain­ing disciplinary action.

1. In lawsuits sponsored by the NAACP, whose conduct was sanctioned in Button, at­
torneys cooperating with the NAACP had been 
praying for court awards of attornev's fees for 
years, and the federal courts made such awards 
in many suits pending at the time of the Button 
decision. See, e.g., Bell v. School Board of 
Powhatan County, Va., 321 F.2d 494 (4th Cir. 
1963)(en banc). Indeed , the complaints in 
County School Board v. Thompson, 240 F.2d 59 
(4th Cir. 1956), and Allen v. School Board of 
Charlottesville, 249 F.2d 462 (4th Cir. 1957), 
both cases sponsored by the NAACP and cited by 
this Court in, the Button decision, 371 U.S. at 
435, n. 16, had prayed for awards of fees to 
the plaintiffs' attorneys. (See Appendices 
filed with the Clerk, U.S. Court of Appeals for 
the Fourth Circuit.) Congress recently found, 
(footnote continued to next page)



20

construction, the rule prohibits attorneys 
from accepting referrals of pro bono cases 
from the ACLU. A rule that destroys the 
ability of private attorneys to offer pro 
bono legal services through an organization 
plainly contradicts the first amendment. 
Compare, NAACP v. Button, supra, 371 U.S. 
at 440, n. 19.

II.
The decision below conflicts with 
NAACP v. Button in that the state 
offered no compelling state interest 
to justify punishing appellant for 
her associational activity.________
The decision below is squarely and ir­

retrievably in conflict with the decision of 
this Court in NAACP v. Button, 371 U.S. 415 
(1963), as amplified in subsequent decisions. 
Brotherhood of Railroad Trainmen v. Virginia 
State Bar, 377 U.S. 1 (1964); United Mine 
Workers v. Illinois State Bar Association,

(footnote continued from preceding page) 
in considering the "Civil Rights Attorney's 
Fees Awards Act of 1976," that:

... fee awards are essential if 
the Federal statutes to which S.2278 
applies [42 U.S.C. §§1981 et seq.] 
are to be fully enforced.... [t]he 
effects of such fee awards are an 
integral part of the remedies neces­
sary to obtain such compliance.
5 U.S. Code Congressional & Admin.
News 5908, 5913 (1976).



21

389 U.S. 217 (1967); United Transportation 
Union v. State Bar of Michigan, 401 U.S.
576 (1971). In Button, the NAACP sent its 
staff attorneys to meetings for the purpose 
of soliciting plaintiffs for civil rights 
lawsuits, particularly in school desegrega­
tion. The NAACP's purpose was "to secure 
the elimination of all racial barriers which 
deprive Negro citizens in equal citizenship 
rights...." To this end, the NAACP engaged 
in education, lobbying and "also devotes much 
of its funds and energies to an extensive 
program of assisting certain kinds of litiga­
tion..." 371 U.S. at 419-420. Ms. Smith was 
assisting the ACLU in doing no more. The 
only differences from Button are that here 
the ACLU is seeking to protect civil liberties, 
rather than the NAACP seeking to protect 
equal citizenship, and the incident occurred 
in South Carolina in the mid-1970's rather 
than in Virginia in the early 1960's.

If the State Court's regulation of the 
legal profession is to avoid constitutional 
infirmity, it must be upon a showing that 
the possibility that an attorney may be paid 
presents a "serious danger"; or more to the 
point, that the regulation is justified by a 
compelling state interest. No such factor 
was claimed or shown here. Nor, for these 
purposes, could even a rational distinction 
be drawn between organizations t hat have 
litigation as one major activity as opposed 
to organizations that do not. Nor has this 
Court ever suggested that organizations for­
feit the protection of the First Amendment 
by availing themselves of remedies provided 
by Congress, such as praying, in proper cases, 
for court awards of attorney's fees.



22
III

The decision below is squarely in 
conflict with In re Ruffalo, 390 
U.S. 544 (1968) , in that fair notice 
of the charges was not given to ap­
pellant, and also in conflict with 
Thompson v. City of Louisville, 362 
U.S. 199 (1960), in that not all
the elements of the cited Disci­
plinary Rules were proved or found 
by the Court below._________________
A. Elements of the disciplinary 

violations.
Appellant was held to have "violated 

DR 2-10-3 (D) (5) (a) by attempting to solicit 
a client for a non-profit organization which, 
as its primary purpose, renders legal ser­
vices, where respondent's associate is a 
staff counsel for the non-profit organization." 
DR 2-104(A)(5) was cited by the court below 
as proscribing the seeking, not the acceptance 
of employment, 9a. The State Court properly 
found that a violation of a particular dis­
ciplinary rule was necessary to sustain 
discipline. la.

DR 2-104(A) appears to require the fol­
lowing elements:

(1) giving unsolicited legal advice 
to a layman that he should take 
legal action, and
(2) accepting employment as a result 
of that advice.



23

No one has claimed appellant did the 
latter.1 The former, by itself, is never 
proscribed.

Disciplinary Rule 2-103(D) requires the 
following elements:

(1) that there be a person or or­
ganization that recommends, fur­
nishes, or pays for legal services; 
and
(2) that the lawyer knowingly 
assists that person or organization, 
to promote the use of his services 
or those of his partners or associ­ates .
Likewise, with respect to DR 2-103 (D), 

the complaint did not allege that any organ­
ization was promoting the services of any 
particular attorney, including appellant or 
her associates.

1. But the State Court held that the 
latter was not an element: "The seeking of 
and not the acceptance of employment is pro­
scribed by DR 2-104(A) (5). " This is directly 
contrary to all known constructions of DR 
2-104(A);•see Smith, supra, at p. 16, n. 1, 
48 Tex.L.Rev. at 295. In addition, the court 
below did not find that appellant sought 
employment for herself or her associates.



24

B. Notice of the elements.
In re Ruffalo, supra, established that 

bar disciplinary proceedings are quasi- 
criminal in nature, and require fair notice 
to the attorney prior to the hearing on the 
violation. At a minimum, this would require 
specification of the elements of the offenses 
alleged. In re Gault, 387 u7s. 1 (1967);
Wolff y. McDonnell, 418 U.S. 539, 564 (1974). 
The disciplinary complaint in this matter 
never alleged most of the above-stated ele­
ments of the Rules found violated, nor did it 
refer to either disciplinary rules by number.
It alleged simply that appellant had committed 
"solicitation" by sending a letter that offered the services of the ACLU.

With respect to DR 2-104(A)(5), none of 
the elements was alleged in the Complaint.
With respect to DR 2-103 (D), there was never 
any allegation that the ACLU was promoting 
the services of appellant or her associates. 
"The charge must be known before the pro­
ceedings commence." In re Ruffalo, supra,
390 U.S. at 551. The failure to specify 
either the Disciplinary Rules or the elements 
thereof prior to the hearing was a fatal 
defect.

C. Findings as to each element.
Thompson v. City of Louisville, supra,

362 U.S. at 206, established that it is "a 
violation of due process to convict and punish 
a man without evidence of his guilt." Here 
there is no evidence that appellant accepted 
employment, yet she is punished for violating 
DR 2-104(A), which requires acceptance as an



25

element. There was no finding that appel­
lant or the ACLU promoted her own services 
or the services of her associates, as 
expressly required by DR 2-103(D); instead, 
the State Court found that appellant solici­
ted a client "on behalf of the ACLU," 6a. 
Under the Thompson case, then, it is clear 
that the finding of violations of both dis­
ciplinary rules contravened due process 
because an essential element of the offenses 
was absent from the proofs and the findings.

CONCLUSION
For the foregoing reasons, this Court 

should note probable jurisdiction of this 
appeal, or, in the alternative, grant a writ 
of certiorari to review the judgment below.

Respectfully submitted,
LAUGHLIN MCDONALD 
NEIL BRADLEY 
CHRISTOPHER COATES 
RAY P. McCLAIN
ATTORNEYS FOR APPELLANT

1. Contrary to the State Court opinion, 
3a, appellant's associate, Mr. Buhl, who was 
a staff attorney for the ACLU, never repre­
sented any plaintiff in Doe v. Pierce.



la

THE STATE OF SOUTH CAROLINA 
In The Supreme Court

In The Matter of Edna Smith . . . .Petitioner.

Opinion No. 20386 
Filed March 17, 1977
PUBLIC REPRIMAND

Laughlin McDonald, of Atlanta, Georgia; Ray 
P. McClain, of Charleston; and Melvin H. Wulf, 
of New York, New York, for petitioner.
Attorney General Daniel R. McLeod and Assistant 
Attorneys General A. Camden Lewis and Richard 
B. Kale, all of Columbia, for respondent.

PER CURIAM: This matter is before the
Court pursuant to an order, issued under Section 
34 of the Rule on Disciplinary Procedure, 
granting petitioner's request for review of a 
private reprimand administered by the Board of 
Commissioners on Grievances and Discipline 
(Board). Petitioner is a member of the Bar of 
this State and the private reprimand was issued 
upon findings that she had violated Disciplinary 
Rules 2-103 (D)(5) (a) and (c) and 2-104 (A)(5)
of the Code of Professional Responsibility by 
soliciting a client on behalf of the American Civil Liberties Union (ACLU).

The grounds urged by petitioner defensively 
before the Board are basically the same as she 
now presents to have the findings and private 
reprimand by the Board set aside. These are:



2a

1. Does the record sustain the find­
ings of the Board that petitioner 
violated the cited provisions of the 
Code of Professional Responsibility?
2. Was petitioner's conduct pro­
tected by the constitutional guarantees 
of freedom of speech and association?
3. Is Rule 4(d) of the South Carolina 
Supreme Court's Rule on Disciplinary 
Procedure void for vagueness and over­
breadth?
4. Did the complaint in this case 
give petitioner notice of the charge 
as required by due process of law?
5. Does the record sustain the find­
ings of the Board that there was no 
retaliatory motive on the part of 
the office of the Attorney General in 
this proceeding?
We are convinced that the record amply sus­

tains the finding of the Board that petitioner 
violated the Code of Professional Responsibility 
and that disciplinary action was required.
While we affirm the findings of the Board that 
petitioner was guilty of unethical conduct, we 
conclude that the facts and circumstances are 
sufficiently aggravated to justify a public, 
instead of a private, reprimand. Accordingly, 
this opinion will be published in the Reports 
of this Court.

This matter was first heard before a Hearing 
Panel which filed its report and recommendations



3a

with the Board. The following portions of the 
panel report, affirmed by the Board, set forth 
the material facts and correctly dispose of 
the issues presented in this appeal:

"The Respondent, Edna Smith, is a prac­
ticing attorney in Columbia, South Carolina, 
having been admitted to the Bar in September 
1972. During the period in which the acts 
complained of in the complaint occurred, 
respondent was an associate in the Carolina 
Community Law Firm, in an expense sharing 
arrangement with each attorney keeping his 
own fees. One of the associate attorneys was 
a staff counsel for the ACLU and was a Counsel 
of Record in the Pierce case (hereinafter 
mentioned). She was also a legal consultant 
of the South Carolina Council on Human Rela­
tions, from whom she received compensation, 
and was an officer of the Columbia Branch of 
the ACLU, and was a cooperating attorney with 
the ACLU.

"In response to information received 
through the South Carolina Council on Human 
Relations, she contacted one Gary Allen, in 
Aiken, South Carolina, to arrange for her to 
talk to people there who had been sterilized. 
The meeting was held in Aiken during the month 
of July, 1973, at the office of Gary Allen. 
Marietta Williams is a Black woman who had 
consented to be sterilized by Dr. Clovis 
Pierce. At the meeting in Gary Allen's office, 
the respondent advised those present, who in­
cluded Mrs. Williams and other women who had 
been sterilized by Dr. Clovis H. Pierce, of 
their legal rights and specifically that they 
could bring suit for money damages against



4a

Dr. Pierce. There was no further contact be­
tween respondent and Mrs. Williams until Mrs. 
Williams received a letter from respondent 
dated August 30, 1973. In this letter respon­
dent referred to the meeting in Mr. Allen's 
office and indicated that the ACLU would like 
to file a lawsuit for her for money against 
the doctor who performed the operation. This 
letter was written on the letterhead of the 
Carolina Community Law Firm and signed by her 
as attorney-at-law.

"Prior to the institution of this pro­
ceeding, a class action entitled Jane Doe and 
Mary Roe, on their behalf and on behalf of all 
others similarly situated, v. Clovis H. Pierce, 
M.D., et al., was commenced in the United States 
District Court of South Carolina to declare the 
acts of the defendant in violation of the First, 
Fourth, Fifth, Eighth, Ninth, Thirteenth and 
Fourteenth Amendments of the Constitution, to 
enjoin such acts, and for money damages and 
attorneys' fees. Respondent contended at a 
procedural hearing in that case, Judge Blatt's 
ruling in allowing certain questions to be 
propounded to a witnesss involving the contact 
of the respondent with the witness was res 
judicata or acted as a collateral estoppel 
against this proceeding, which contention Judge 
Chapman dismissed as is hereinafter reflected.

"After the filing of this disciplinary pro­
ceeding against the respondent, an action was 
brought in the United States District Court of 
South Carolina, Columbia Division, to enjoin 
the members of the Board of Commissioners on 
Grievances and Discipline, individually and as 
members of the Board, and the Attorney General



5a

of South Carolina from prosecuting or other­
wise processing the complaint in this pro­
ceedings. Complaint also prayed for costs, 
plus attorneys' fees and a declaration that 
the complaint before the Board was in viola­
tion of her rights under the First and Four­
teenth Amendments. In dismissing the complaint, 
on the grounds that the complainant failed to 
state facts entitling respondent to Federal intervention, Judge Chapman held:

1 (1) That to be entitled to injunctive 
relief against an action pending in a State 
Court the plaintiff must not only prove bad 
faith and harassment, which was alleged in 
this action, but also show that unless res­
trained the proceeding would cause grave and 
irreparable injury without providing any 
reasonable prospect that the State Court would 
respect and satisfactorily resolve the consti­
tutional issue raised, which was not alleged or proved in the case.

'(2) That Judge Blatt's ruling in Doe 
v. Pierce, in regards to allowing questions 
as to solicitation, was solely because they 
might go to the issue of the appropriateness 
of the class action, and was in no way res 
judicata or acted as a collateral estoppel 
upon the Board or the Supreme Court of South Carolina.'

"The evidence presented indicated that the 
ACLU has only entered cases in which substantial 
civil liberties questions are involved, and that 
contrary to their former practice, they are now 
asking for fees, in addition to any damages 
that might be awarded to the plaintiffs, and



6a

that they are never reimbursed out of the 
damages awarded the plaintiffs.

"The evidence is inconclusive as to whether 
the respondent solicited Mrs. Williams on her 
own behalf, but she did solicit Mrs. Williams 
on behalf of the ACLU, which would benefit fi­
nancially in the event of successful prosecution 
of the suit for money damages.

"Respondent's contention that her actions 
were protected by the First and Fourteenth 
Amendments of the United States Constitution 
gives us some concern, but the other defenses 
are of little merit and will be disposed of first.

"Respondent's contention that Judge Blatt's 
ruling in a preliminary hearing in the case 
of Jane Doe and Mary Roe v. Clovis H. Pierce, 
M.D., et al., is res judicata or operates to 
estop the Board of Commissioners on Grievances 
and Discipline is patently erroneous. As 
stated in Respondent's own Pre-trial Memorandum, 
'Under the Doctrine of res judicata a former 
judgment operates as a bar against a second 
action upon the same cause of action, but in a 
later action upon a different cause of action 
it operates as an estoppel or conclusive adjudi­
cation as to such issues in the second action 
as were actually litigated and determined in 
the first action. Lorber v. Vista Irrigation 
District, 127 F. (2d) 628 (10th Cir. 1942) , 
Exhibitor's Poster Exhange, Inc, v. National 
Screen Service Corp. , (2d) 1313 (5th
Cir. 1970). The relevant inquiry into the 
application of this doctrine is identity of



7a

parties, subject matter, cause of action and 
whether or not the persons against whom es­
toppel is asserted had a full and fair opportu­
nity for judicial resolution of the said issue.’ 
In the case before Judge Blatt neither of the 
parties to this proceeding were parties, the 
subject matter and causes of action were 
totally different, and finally the complaint 
in this case had no opportunity for judicial 
resolution of the issue of solicitation.

"Respondent's contention that the pro­
ceedings were initiated in retaliation because 
of her race, sex and in violation of the First 
and Fourteenth Amendments are not well taken. 
While respondent did introduce evidence of 
her race, sex and certain of her associational 
activities, there is a total lack of proof that 
the Board of Commissioners on Grievances and 
Discipline or the Attorney General issued the 
complaint against her in retaliation. Respondent 
properly takes the position that evidence is 
particularly suspect when it is procured -by a 
party who is acting adversely to the respondent 
in other litigation. However, the evidence 
here does not bear out her position that the 
complaint against her was initiated by the Office 
of the Attorney General, and even if it had been 
the Attorney General was not acting adversely 
to the respondent in other litigation in which 
she was a party, as the letter written to Mrs. 
Williams came to the attention of the Attorney 
General during proceedings in the case of Jane 
Doe and Mary Roe v. Pierce.

"Respondent contends that Rule 4 of the 
Rules of Disciplinary Procedure of the South 
Carolina Supreme Court is vague and overbroad.



8a

Misconduct is defined in Rule 4(b) as violation 
of any provision of the Canons of Professional 
Ethics as adopted by this Court from time to 
time. The Code of Professional Responsibility 
of the American Bar Association was adopted by 
the South Carolina Supreme Court on March 1, 
1973. Canon 2 of the Code of Professional 
Responsibility deals specifically with solici­
tation. While the complaint may have been 
loosely drafted in that violation of Rule 4 (d) 
of the South Carolina Disciplinary Rules was 
charged, wherein misconduct was defined as 
conduct tending to pollute or obstruct the 
administration of justice or to bring the 
Courts or the legal profession into disrepute, 
the specification of the charge was solicita­
tion, and the Panel is of the opinion that 
violation of any of the disciplinary rules is 
such an action as would, at least, bring the 
legal profession into disrepute.

"In any event the Panel is of the opinion 
that respondent was fully apprised of the 
charges against her by the complainant, and 
even if she had not been, the proper procedure 
would have been by motion to have the complaint 
made more definite and certain.

"Discriplinary Rule 2-104 (A) provides:
'(A) A lawyer who has given un­
solicited advice to a layman that 
he should obtain counsel or take 
legal action shall not accept 
employment resulting from that 
advice, except that:



9a

' (5) If success in asserting rights 
or defenses of his client in litiga­
tion in the nature of a class action 
is dependent upon the joinder of 
others, a lawyer may accept, but 
shall not seek, employment from those 
contacted for the purpose of obtaining their joinder.'
"Here, by respondent's own testimony, she 

met with Mrs. Williams in Aiken, gave un­
solicited advice as to what her rights were as 
she, the respondent, saw them. Then respondent 
followed up with her letter of August 30, 1973, 
wherein she solicited Mrs. Williams to join in 
a class action suit for money damages to be 
brought by the ACLU. The seeking of and not 
the acceptance of employment is proscribed by DR 2-104 A (5).

"Disciplinary Rule 2-103 D (5) provides:
1(D) A lawyer shall not knowingly 
assist a person or organization that 
recommends, furnishes, or pays for 
legal services to promote the use of 
his services or those of his partners 
or associates. However, he may co­
operate in a dignified manner with 
the legal service activities of any 
of the following, provided that his 
independent professional judgment is 
exercised in behalf of his client 
without interference or control by 
any organization or other person:



10a

'(5) Any other non-profit organiza­
tion that recommends, furnishes or 
pays for legal services to its members 
or beneficiaries, but only in those 
instances and to the extent that con­
trolling constitutional interpretation 
at the time of the rendition of the 
service requires the allowance of 
such legal service activities, and 
only if the following conditions, 
unless prohibited by such interpre­
tation, are met:
"(a) The primary purpose of such 
organizations do not include the 
rendition of legal service.

" (c) Such organization does not de­
rive a financial benefit from the 
rendition of legal service by the 
lawyer."'

"Testimony at the hearing established that 
one of, if not the primary purpose of the ACLU, 
was the rendition of legal services. It was 
also set out in respondent's Pre-trial Memoran­
dum that the ACLU and its state affiliates on 
any given day are involved in several thousand 
active cases throughout the country. It is, 
also, the policy of the ACLU to ask for attorneys' 
fees in their lawsuits, and their fees go into 
its central fund and are used among other things 
to pay costs and salaries and expenses of staff 
attorneys.



11a

"Consequently, the Panel is of the opinion 
that the respondent has violated Disciplinary 
Rule 2-103 (D)(5)(a)(c) and is therefore guilty of solicitation.

"In the case of NAACP v. Button, 371 U.S. 
415, 9 L. Ed. (2d) 405, 83 S. Ct. 328, the 
facts revealed that the State of Virginia had 
statutory regulations of unethical conduct of 
attorneys from 1849, which forbade solicitation 
of legal business in the form of 'running' or 
'capping'. Prior to 1956 no attempt was made 
to proscribe under such regulations the activi­
ties of the NAACP, which had been carried on 
openly for years. In 1956, however, the Virginia 
Legislature amended the Virginia Code by passage 
of Chapter 33, forbidding solicitation of legal 
business by a 'runner' or 'capper' to include 
in the definition of 'runner' or 'capper' an 
agent for an individual or organization which 
retains a lawyer in connection with an action 
to which it is a party and in which it has no 
pecuniary right or liability. The Supreme 
Court in its decision stated 'the only issue 
before us is this constitutionality of Chapter 33, as applied to the NAACP.'

"The final query then is was the solicita­
tion protected under the First and Fourteenth 
Amendments, as earnestly urged by respondent.
DR 2-103 (D)(5) specifically recognizes the 
inherent constitutional problems and provides 
for the- same by allowing an attorney to co­
operate with the legal service activities of 
a '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 interpretation at the time of



12a

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....' 
Thus, DR 2-103 (D)(5) prohibits solicitation 
except where controlling constitutional inter­
pretations mandate the allowance of the specific 
service. Furthermore, in order for an attorney 
to solicit on behalf of a non-profit organiza­
tion, the four conditions of DR 2-103 (D) (5)
(a— d) must be met unless application of these 
four conditions has, jointly or severally, been 
prohibited by controlling constitutional 
interpretations.

"The first of the above mentioned four 
conditions is that '[t]he primary purpose of 
[non-profit] organizations do not include the 
rendition of legal services.' The ACLU, the 
non-profit organization herein involved, by 
its own admission, may have several thousand 
lawsuits in progress at any one day and they 
classify themselves as private attorneys general. 
It follows, therefore, that its primary purpose 
is the rendition of legal services. This Panel 
has not found, nor has it been furnished with, 
any case showing that a state is prohibited, 
on constitutional grounds, from regulating 
the activities of attorneys' soliciting clients 
on behalf of a non-profit organization which 
has as one of its primary purposes the rendi­
tion of legal services. Respondent relies on 
four cases: NAACP v. Button, supra, 371 U.S.
415, 9 L. Ed. (2d) 405, 83 S.Ct. 328; Brother­
hood of Railroad Trainmen v. Virginia, 377 
U.S. 1, 12 L.Ed. (2d) 89, 84 S.Ct. 1113; United 
Mine Workers v. Illinois Bar Association, 389



13a

U.S. 217, 19 L.Ed. (2d) 426, 88 St.Ct. 353
and United Transportation Union v. State Bar 
of Michigan, 401 U.S. 576, 28 L.Ed. (2d) 339,
91 S. Ct. 1076. None of the four non-profit 
organizations involved in the above cases, has 
as one of its primary purposes, the rendition 
of legal services. In NAACP v. Button, the 
court addresses itself to the legal services 
rendered by the NAACP. However, the court 
appears to characterize the NAACP as a politi­
cal, rather than legal organization, and depicts 
litigation as an adjunct to the overriding 
political aims of the organization.

"That the American Bar Association con­
sidered the aspect of the NAACP case is obvious 
from the fact that the second of the above 
conditions allows solicitation where 'the re­
commending, furnishing, or paying for legal 
services to its members is incidental and 
reasonably related to the primary purposes of 
such organization.' As pointed out litigation 
is the primary purpose of the ACLU; it is not 
simply incidental to its primary purpose. This 
condition is not constitutionally prohibited, 
but is rather constitutionally required by NAACP v. Button.

"In that there is no question but that the 
respondent has not violated the second and third 
conditions of DR 2-103 (D)(5), there is no need 
to question whether they are constitutionally prohibited or not.

"Respondent has, therefore, violated DR 
2-103 (D)(5)(a) by attempting to solicit a 
client for a non-profit organization which, as



14a

its primary purpose, renders legal services, 
where respondent's associate is a staff counsel 
for the non-profit organization. If respon­
dent 's contention that her actions were pro­
tected by the First and Fourteenth Amendments 
of the Constitution were upheld, it would 
amount to a holding that the pertinent pro­
vision of Canon 2 of the Code of Professional 
Responsibility was unconstitutional, which we are not prepared to do."

It is therefore ORDERED that petitioner, Edna Smith, be and she hereby is publicly reprimanded.

s/ J. Woodrow Lewis______C.J.
s/ Bruce Littlejohn______A.J.
s/ J.B. Ness_____________ A.J.
s/ Wm. L. Rhodes, Jr. A.J.
s/ George T. Gregory, Jr.A.J.



15a

STATE OF SOUTH CAROLINA)
)COUNTY OF RICHLAND )

BEFORE THE BOARD 
OF COMMISSIONERS 
ON GRIEVANCES AND 
DISCIPLINE

In the Matter of: )
)John W. Williams, Jr., )

Secretary of the Board ) 
of Commissioners on )
Grievances and Dis- ) 
cipline, )

Complainant, )
)-vs- ) PANEL REPORT
)Edna Smith, )
)__________Respondent. )

This proceeding was commenced on or 
about the 10th day of October, 1974, by a 
Notice and Complaint in which the Respondent 
was charged with solicitation in violation 
of the Canons of Professional Ethics. Res­
pondent answered, denying the charge, and 
setting up the following affirmative defenses

1. That her actions were protected by 
Canon 2 of the Code of Professional Ethics;

2. That her actions were protected by 
the First and Fourteenth Amendments of the 
Constitution of the United States;

3. That the Board of Commissioners on 
Grievances and Discipline was estopped by



16a

prior proceedings in Doe v. Pierce, No. 74-75, 
United States District Court, South Carolina, 
and alternatively that such proceedings were 
res judicata as to the subject matter in the case;

4. That this proceeding was instituted 
in retaliation because of her race, sex and 
associational activities with the ACLU, in 
violation of the First and Fourteenth Amend­
ments of the United States Constitution;

5. That Rule 4 of the Rules of Dis­
ciplinary Procedure of the South Carolina 
Supreme Court is vague and overbroad.

The matter came on for hearing before 
the undersigned panel on the 20th day of 
March, 1975, at Columbia, South Carolina.

The Complainant was represented by 
Richard B. Kale, Jr., Esquire, Assistant 
Attorney General of Columbia, South Carolina. 
The Respondent was represented by Laughlin 
McDonald, Esquire, ACLU Foundation, Inc., 
Atlanta, Georgia, and Ray P. McClain, Esquire, 
Charleston, South Carolina.

The Panel has carefully considered the 
evidence and the arguments and briefs of 
Counsel, and makes the following Report:

* * *113
In addition to the concern which this 

case has given the Panel in its findings with
1. The omitted portion of the panel report 

is quoted without chance (with the exception of 
adding full citations) in the opinion of the Supreme Court, 3a-14a.



17a

reference to the matter of violation of the 
Code of Professional Responsibility, the Panel 
has been impressed by the fact that the Res­
pondent's activities were neither aggravated 
nor widespread. The record before the Panel 
does not indicate any continuous activity on 
the part of the Respondent, which is pro­
hibited by the Canons of Professional Ethics. 
The violation as found by the Panel from the 
record is isolated to one particular class action.

After considering the entire record, and 
after giving the Respondent the benefit of 
the doubt, it is the recommendation of the 
Panel that the Respondent be given a private reprimand.

Respectfully submitted,

s/ H. Hayne Crum____

s/ Melvin B. McKeown

s/ John B. McCutcheon

Members of Panel.



18a

CONSTITUTIONAL AND OTHER 
PROVISIONS INVOLVED

UNITED STATES CONSTITUTION, Amendment One:
Congress shall make no law respecting 

an establishment of religion, or pro­
hibiting the free exercise thereof; or 
abridging the freedom of speech, or of the 
press; or the right of the people peaceably 
to assemble, and to petition the Government 
for a redress of grievances.

UNITED STATES CONSTITUTION, Amendment Fourteen:
Section 1. All persons born or natural­

ized in the United States, and subject to the 
jurisdiction thereof, are citizens of the 
United States and of the State wherein they 
reside. No State shall make or enforce any 
law which shall abridge the privileges or 
immunities of citizens of the United States; 
nor shall any State deprive any person of 
life, liberty, or property, without due 
process of law; nor deny to any person within 
its jurisdiction the equal protection of the laws .-

Supreme Court of South Carolina, Rule on 
Disciplinary Procedure, Section 4:

4. Misconduct Defined.
Misconduct, as the term is used herein, 

means any one or more of the following:
(a) violation of any provision of the 

oath of office taken upon admission to the 
practice of law in this State;

(b) violation of any of the Canons of 
Professional Ethics as adopted by this Court from time to time;



19a

(c) commission of a crime involving moral turpitude;
(d) conduct tending to pollute or obstruct 

the administration of justice or to bring the 
courts or the legal profession into disrepute.

(e) emotional or mental stability so un­
certain, as in the judgment of ordinary men, 
would render a person incapable of exercising 
such judgment and discretion as necessary for 
the protection of the rights of others and/or 
their property or interest in property.

American Bar Association, Code of Professional 
Responsibility, adopted by Supreme Court of 
South Carolina, Disciplinary Rule 2-103(D):

DR 2-103 Recommendation of Professional Employment.
(D) A lawyer shall not knowingly assist a 
person or organization that recommends, fur­
nishes, or pays for legal services to promote 
the use of his services or those of his 
partners or associates. However, he may co­
operate in a dignified manner with the legal 
service activities of any of the following, 
provided that his independent professional 
judgment is exercised in behalf of his client 
without interference or control by any organi­
zation or other person:

(1) A legal aid office or public defender office:
(a) Operated or sponsored by a duly 

accredited law school.
(b) Operated or sponsored by a bona 

fide non-profit community organization.



20a

(c) Operated or sponsored by a govern­
mental agency.

(d) Operated, sponsored, or approved 
by a bar association representative of the 
general bar of the geographical area in which 
the association exists.

(2) A military legal assistance office.
(3) A lawyer referral service ODerated, 

sponsored, or approved by a bar association 
representative of the general bar of the geo­
graphical area in which the association exists.

(4) A bar association representative of 
the general bar of the geographical area in 
which the association exists.

(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 interpretation at 
the time of the rendition of the services re­
quires the allowance of such legal service 
activities, and only if the following condi­
tions, unless prohibited by such interpreta­tion, are met:

(a) The primary purposes of such or­
ganization do not include the rendition of legal services.

(b) The recommending, furnishing, or 
paying for legal services to its members is 
incidental and reasonably related to the 
primary purposes of such organization.

(c) Such organization does not derive 
a financial benefit from the rendition of 
legal services by the lawyer.



21a

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

American Bar Association, Code of Professional 
Responsibility, adopted by Supreme Court of 
South Carolina, Disciplinary Rule 2-104:

DR 2-104 - Suggestion of Need of 
Legal Services.

(A) A lawyer who has given unsolicited 
advice to a layman that he should obtain 
counsel or take legal action shall not accept 
employment 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.

(2) A lawyer may accept employment
that results from his participation in activi­
ties designed to educate laymen to recognize 
legal problems, to make intelligent selection 
of counsel, or to utilize available legal 
services if such activities are conducted or 
sponsored by any of the offices or organiza­
tions enumerated in DR 2-103 (D) (1) through
(5), to the extent and under the conditions 
prescribed therein.

(3) A lawyer who is furnished or paid
by any of the offices or organizations enu­
merated in DR 2-103 (D) (1), (2), or (5) may
represent a member or beneficiary thereof



22a

to the extent and under the conditions pre­scribed therein.
(4) Without affecting his right to 

accept employment, a lawyer may speak publicly 
or write for publication on legal topics so 
long as he does not emphasize his own pro­
fessional experience or reputation and does 
not undertake to give individual advice.

(5) If success in asserting rights or 
defenses of his client in litigation in the 
nature of a class action is dependent upon 
the joinder of others, a lawyer may accept, 
but shall not seek, employment from those 
contacted for the purpose of obtaining their joinder.



23a

STATE OF SOUTH CAROLINA )BEFORE THE BOARD OF
)COMMISSIONERS ON

COUNTY OF RICHLAND )GRIEVANCES AND DIS­
CIPLINE

In the Matter of: )
)John W. Williams, Secretary )

of the Board of Commissioners )
on Grievances and Discipline, )

)Complainant, )
)vs. ) COMPLAINT
)Edna Smith, )
)___________Respondent. )

Complainant alleges:
I.

The Complainant is the Secretary of the 
Board of Commissioners on Grievances and Dis­
cipline and a duly licensed attorney in the 
State of South Carolina, and the Respondent 
is engaged in the practice of lav/ as a duly 
licensed attorney who resides or maintains an 
office in the County of Richland, State of 
South Carolina.

II.
On information and belief the Respondent 

committed the following act of misconduct or 
has indulged in the following practice which



24a

tends to pollute the administration of justice 
or to bring the legal profession or the courts 
into disrepute:

A. On or about August 30, 1973, Respon­
dent wrote a letter to Mrs. Marietta 
Williams of 347 Sumter Street, Aiken, 
South Carolina, a copy of which is 
attached, by the terms of which Res­
pondent informed Mrs. Williams that 
"The American Civil Liberties Union 
would like to file a lawsuit on your 
behalf for money against the doctor 
who performed the operation." Com­
plainant is informed and believes 
that the foregoing constitutes 
solicitation in violation of the 
Canons of Ethics.

WHEREFORE, Complainant prays that the 
Board of Commissioners on Grievances and Dis­
cipline consider these allegations and make 
such disposition as may be appropriate.

s/ John W. Williams 
Complainant

[Verification Omitted]



25a

August 30, 1973
Mrs. Marietta Williams
347 Sumter Street
Aiken, South Carolina • 29801
Dear Mrs. Williams:

You will probably remember me from 
talking with you at Mr. Allen's office in 
July about the sterilization performed on 
you. The American Civil Liberties Union 
would like to file a lawsuit on your behalf 
for money against the doctor who performed 
the operation. We will be coming to Aiken 
in the near future and would like to explain 
what is involved so you can understand what is going on.

Now I have a question to ask of you.
Would you object to talking to a women's 
magazine about the situation in Aiken? The 
magazine is doing a feature story on the 
whole sterilization problem and wants to talk 
to you and others in South Carolina. If you 
don't mind doing this, call me collect at 
254-8151 on Friday before 5;00, if you receive 
this letter in time. Or call me on Tuesday 
morning (after Labor Day) collect.

I want to assure you that this inter­
view is being done to show what is happening 
to women against their wishes, and is not 
being done to harm you in any way. But I 
want you to decide, so call me collect and 
let me know of your decision. This practice 
must stop.



26a

About the lawsuit, if you are interested, let me know, and I'll let you know when we 
will come down to talk to you about it. We 
will be coming to talk to Mrs. Waters at the 
same time; she has already asked the American 
Civil Liberties Union to file a suit on her behalf.

Sincerely,

s/ Edna Smith 
Edna Smith 
Attorney-at-Law



27a
[Filed April 15, 1977]

THE STATE OF SOUTH CAROLINA 
IN THE SUPREME COURT

In the matter of Edna Smith,
Petitioner.

NOTICE OF APPEAL TO THE
SUPREME COURT OF THE UNITED STATES
NOTICE is hereby given that Edna Smith, 

the petitioner above-named, hereby appeals to 
the Supreme Court of the United States from 
the final order imposing discipline on her 
entered in this matter on March 17, 1977.

This appeal is taken pursuant to 28 U.S.C. § 1257(2).
s/ Ray P. McClain 
RAY P. McCLAIN
Attorney for Petitioner



28a

UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

___________ [Filed April
No. 75-1335 30, 1976]

American Civil Liberties 
Union and Jane Koe,

Appellants,
versus

0. Harry Bozardt, Jr., H. Hayne Crum,
Joseph 0. Rogers, Jr., Marion H. Kinon,
Edward M. Royall, II, George F. Coleman,
Robert A. Hammett, Thomas J. Thompson,
Conning B. Gibbs, Jr., Lowell W. Ross,
Frank E. Harrison, J. Malcolm McLendon,
C. Thomas Wyche, William L. Bethea, John 
B. McCutcheon, Melvin B. McKeown, Jr., 
individually and as members of the Board 
of Commissioners on Grievances and Discipline, 
and their successors; and the Attorney 
General of South Carolina,

Appellees.

O R D E R
Upon consideration of the petition for 

rehearing it is ORDERED, with the consent and 
approval of Judge Bryan and Judge Field, that 
the petition for rehearing be and the same hereby is denied.

Upon consideration of the suggestion for 
a rehearing en banc, a poll of the court having 
been requested by a regular active member of 
the court, it was established that a majority



29a

of the regular members of the court in 
active service did not favor rehearing en banc,

NOW, THEREFORE, IT IS ORDERED that 
the suggested rehearing en banc be and the same hereby is denied.

For the court:

s/ Herbert S. Boreman 
Senior United States 
Circuit Judge.



30a

WINTER, Circuit Judge, dissenting:
I dissent from the denial of rehearing en banc.
This is a classic case for such treat­

ment. It presents a question of exceptional 
importance, Rule 35(a), F.R.A.P., and there 
is substantial reason to conclude that the case is wrongly decided.

I.
The panel holds that the principles set 

forth in Younger v. Harris, 401 U.S. 37 (1971) 
and its progeny, oust federal jurisdiction of 
an action under 42 U.S.C. §1983 for declara­
tory and injunctive relief where there is a 
pending a state administrative proceeding, 
the object of which is to determine if the 
individual plaintiff should be subject to dis­
ciplinary action, not criminal sanctions, for 
alleged misconduct as a member of the bar.*
* At the outset, I express serious reserva­
tions that even if Younger applies, it would 
support the result reached by the majority. 
Younger appears to recognize that it is in- 
applicable where a plaintiff shows "bad faith, 
harassment, or any other unusual circumstance 
that would call for equitable relief." 401 U.S 
at 54. The complaint was dismissed notwith­
standing plaintiffs' allegations that the dis­
ciplinary inquiry "was initiated against plain 
tiff Koe in bad faith for purposes of and has 
the effect of, harassment and retaliation and 
chilling and discouraging the activities of 
(footnote continued to next page)



31a

What is at stake in the state proceedings is 
the right of a licensee to practice her pro­
fession; there is no claim that, if the indi­
vidual plaintiff did the things with which she 
is charged, any criminal statute of South 
Carolina was infringed.

Under presently decided controlling autho­
rities, the outermost reach of the Younger 
principle of federal non-intervention was 
Huffman v. Pursue, Ltd., 420 U.S. 592 (1975), 
which held that a district court should not 
exercise jurisdiction to determine the con­
stitutionality of a statute making a movie 
theatre which shows obscene films a nuisance 
and requiring its closing when there was pend­
ing an earlier filed state civil proceeding 
under the statute. Huffman recognized federal 
civil injunctive relief ought to be more con­
servatively granted when the object of relief 
was a state officer enforcing a state statute 
than in a case between private litigants— a 
concept implicit in Younger— but that Younger 
rested also "upon the traditional reluctance 
of courts of equity ... to interfere with a 
criminal prosecution." 420 U.S. at 640. Thus, 
the rationale articulated in Huffman was that

[W]e deal here with a state pro­
ceeding which in important respects 
is more akin to a criminal prosecu­
tion than are most civil cases. The 
State is a party to the Court of

(footnote continued from preceding page)
ACLU and the giving of solicited and unsolicited 
advice to lay persons that they should obtain 
counsel or take legal action."



32a

Common Pleas proceeding, and the 
proceeding is both in aid of and 
closely related to criminal sta­
tutes which prohibit the dis­
semination of obscene materials.
Thus, an offense to the State's 
interest in the nuisance litiga­
tion is likely to be every bit 
as great as it would be were this 
a criminal proceeding ... while 
in this case the District Court's 
injunction has not directly dis­
rupted Ohio's criminal justice 
system, it has disrupted that 
State's efforts to protect the 
very interests which underlie 
its criminal laws and to obtain 
compliance with precisely the 
standards which are embodied in 
its criminal laws. 420 U.S. 604-05.
Huffman does not govern this case, and 

Younger should not be applied here. Although 
the district court ought not to enjoin the 
administrative proceeding unless the plain­
tiffs' right to relief is free from doubt, I 
see no basis on which to say that federal 
jurisdiction is ousted because the proceeding 
is criminal or quasi-criminal in nature. I 
think that the panel's decision flies in the 
teeth of Mitchum v. Foster, 407 U.S. 225 
(1972) (holding that an action under 42 U.S.C. 
§1983 was an exception to the anti-injunction 
statute, 28 U.S.C. §2283); Gibson v. Berryhill, 
411 U.S. 564 (1973) (holding that a federal 
court could enjoin a proceeding before the 
Alabama Board of Optometry where, as here,



33a

plaintiffs allege bias and harassment); and 
Steffel v. Thompson, 415 U.S. 452 (1974) 
(holding that declaratory relief, such as 
that prayed here, could be granted where a 
state criminal prosecution was threatened 
but not pending.) See also, Taylor v. Kentucky 
State Bar Assoc., 424 F.2d 478, 482 (6 Cir. 
1970) (holding that bar disciplinary pro­
ceedings at the administrative level are not "proceedings in a state court.")

II.
Only the individual plaintiff is the 

subject of the state administrative inquiry; 
the ACLU is not. Yet the latter has a sub­
stantial interest in the state proceedings.
The impact of the state proceedings on the 
willingness of lawyers to volunteer and co­
operate with ACLU in providing legal assis­
tance to those whose constitutional rights 
have been violated is manifest. The services 
of ACLU —  assisting lay persons to recognize 
their legal rights and making counsel avail­
able —  are the very services for which the 
individual plaintiff is sought to be dis­
ciplined and they are constitutionally pro­
tected activities. United Mine Workers v. 
Illinois Bar Association, 389 U.S. 217 (1967); 
Brotherhood of Railroad Trainmen v. Virginia, 
"377 U.S. 1 (1964); NAACP v. Button, 371 U.S.
415 (1963). See In re Ades, 6 F.S. 467, 475-76 
(D. Md. 1934), for a persuasive historical 
compilation by a district judge, later a 
distinguished member of this court.

It seems to me that under these circum­
stances Steffel holds that even if Younger



34a

is a bar to jurisdiction over the claim of 
the individual plaintiff, the claim of ACLU 
can and should be litigated. See also 
Doran v. Salem Inn, Inc., 422 U.S. 922, 931 
(1975) .

III.
Thus, I would conclude that for these 

several reasons the panel's decision is in­
correct. We should grant rehearing en banc 
and reach a different result.

Judge Craven and Judge Butzner authorize 
me to say that they join in these views.