|In re Primus
[ Powell ]
[ Blackmun ]
[ Rehnquist ]
In re Primus
APPEAL FROM THE SUPREME COURT OF SOUTH CAROLINA
MR. JUSTICE REHNQUIST, dissenting.
In this case and the companion case of Ohralik v. Ohio State Bar Assn., post, p. 447, the Court tells its own tale of two lawyers: one tale ends happily for the lawyer, and one does not. If we were given the latitude of novelists in deciding between happy and unhappy endings for the heroes and villains of our tales, I might well join in the Court's disposition of both cases. But, under our federal system, it is for the States to decide which lawyers shall be admitted to the Bar and remain there; this Court may interfere only if the State's decision is rendered impermissible by the United States Constitution. We can, of course, develop a jurisprudence of epithets and slogans in this area, in which "ambulance chasers" suffer one fate and "civil liberties lawyers" another. But I remain unpersuaded by the Court's opinions in these two cases that there is a principled basis for concluding that the First and Fourteenth Amendments forbid South Carolina from disciplining Primus here, but permit Ohio to discipline Ohralik [p441] in the companion case. I believe that both South Carolina and Ohio acted within the limits prescribed by those Amendments, and I would therefore affirm the judgment in each case.
This Court said in United Transportation Union v. Michigan Bar, 401 U.S. 576, 585 (1971):
The common thread running through our decisions in NAACP v. Button, [371 U.S. 415 (1963),] Trainmen [v. Virginia Bar, 377 U.S. 1 (1964),] and United Mine Workers [v. Illinois Bar Assn., 389 U.S. 217 (1967),] is that collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment.
The Court today ignores the absence of this common thread from the fabric of this case, and decides that South Carolina may not constitutionally discipline a member of its Bar for badgering a lay citizen to take part in "collective activity" which she has never desired to join.
Neither Button nor any other decision of this Court compels a State to permit an attorney to engage in uninvited solicitation on an individual basis. Further, I agree with the Court's statement in the companion case that the State has a strong interest in forestalling the evils that result "when a lawyer, a professional trained in the art of persuasion, personally solicits an unsophisticated, injured, or distressed lay person." Ohralik, post at 465. The reversal of the judgment of the Supreme Court of South Carolina thus seems to me quite unsupported by previous decisions or by any principle which may be abstracted from them.
In distinguishing between Primus' protected solicitation and Ohralik's unprotected solicitation, the Court lamely declares:
We have not discarded the "common sense" distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.
Post at 455-456. Yet to the extent that this "common sense" distinction focuses on the content of the speech, it is at least suspect under many of [p442] this Court's First Amendment cases, see, e.g., Police Dept. of Chicago v. Mosley, 408 U.S. 92, 96-98 (1972), and to the extent it focuses upon the motive of the speaker, it is subject to manipulation by clever practitioners. If Albert Ohralik, like Edna Primus, viewed litigation "‘not [as] a technique of resolving private differences,'" but as "‘a form of political expression' and ‘political association,'" ante at 428, quoting Button, supra at 429, 431, for all that appears, he would be restored to his right to practice. And we may be sure that the next lawyer in Ohralik's shoes who is disciplined for similar conduct will come here cloaked in the prescribed mantle of "political association" to assure that insurance companies do not take unfair advantage of policyholders.
This absence of any principled distinction between the two cases is made all the more unfortunate by the radical difference in scrutiny brought to bear upon state regulation in each area. Where solicitation proposes merely a commercial transaction, the Court recognizes "the need for prophylactic regulation in furtherance of the State's interest in protecting the lay public." Ohralik, post at 468. On the other hand, in some circumstances (at least in those identical to the instant case) [n1] "[w]here political expression or association is at [p443] issue," a member of the Bar "may not be disciplined unless her activity in fact involve[s] the type of misconduct at which South Carolina's broad prohibition is said to be directed." Ante at 434.
I do not believe that any State will be able to determine with confidence the area in which it may regulate prophylactically and the area in which it may regulate only upon a specific showing of harm. Despite the Court's assertion to the contrary, ante at 438 n. 32, the difficulty of drawing distinctions on the basis of the content of the speech or the motive of the speaker is a valid reason for avoiding the undertaking where a more objective standard is readily available. I believe that constitutional inquiry must focus on the character of the conduct which the State seeks to regulate, and not on the motives of the individual lawyers or the nature of the particular litigation involved. The State is empowered to discipline for conduct which it deems detrimental to the public interest unless foreclosed from doing so by our cases construing the First and Fourteenth Amendments.
In Button, this Court recognized the right of the National Association for the Advancement of Colored People to engage in collective activity, including the solicitation of potential plaintiffs from outside its ranks, for the purpose of instituting and maintaining litigation to achieve the desegregation of public schools. The NAACP utilized letters, bulletins, and petition drives, 371 U.S. at 422, apparently directed toward both members and nonmembers of the organization, id. at 433, [n2] to organize public meetings for the purpose of soliciting [p444] plaintiffs. As described in Button, lawyers played only a limited role in this solicitation:
Typically, a local NAACP branch will invite a member of the legal staff to explain to a meeting of parents and children the legal steps necessary to achieve desegregation. The staff member will bring printed forms to the meeting, authorizing him, and other NAACP or Defense Fund attorneys of his designation, to represent the signers in legal proceedings to achieve desegregation.
Id. at 421. The Court held that the organization could not be punished by the Commonwealth of Virginia for solicitation on the basis of its role in instituting desegregation litigation. [n3]
Here, South Carolina has not attempted to punish the ACLU or any laymen associated with it. Gary Allen, who was the instigator of the effort to sue Dr. Pierce, remains as free as before to solicit potential plaintiffs for future litigation. Likewise, Primus remains as free a before to address gatherings of the sort described in Button to advise potential plaintiffs of their legal rights. Primus' first contact with Williams took place at such a gathering, and South Carolina, evidently in response to Button, has not attempted to discipline [p445] her for her part in that meeting. It has disciplined her for initiating further contact on an individual basis with Williams, who had not expressed any desire to become involved in the collective activity being organized by the ACLU. While Button appears to permit such individual solicitation for political purposes by lay members of the organization, id. at 422, it nowhere explicitly permits such activity on the part of lawyers.
As the Court understands the Disciplinary Rule enforced by South Carolina,
a lawyer employed by the ACLU or a similar organization may never give unsolicited advice to a lay person that he or she retain the organization's free services.
Ante at 433. That prohibition seems to me entirely reasonable. A State may rightly fear that members of its Bar have powers of persuasion not possessed by laymen, post at 464-465, and it may also fear that such persuasion may be as potent in writing as it is in person. Such persuasion may draw an unsophisticated layman into litigation contrary to his own best interests, compare ante at 434-438, with Ohralik, post at 464-467, and it may force other citizens of South Carolina to defend against baseless litigation which would not otherwise have been brought. I cannot agree that a State must prove such harmful consequences in each case simply because an organization such as the ACLU or the NAACP is involved.
I cannot share the Court's confidence that the danger of such consequences is minimized simply because a lawyer proceeds from political conviction, rather than for pecuniary gain. A State may reasonably fear that a lawyer's desire to resolve "substantial civil liberties questions," 268 S.C. 259, 263, 233 S.E.2d 301, 303 (1977), may occasionally take precedence over his duty to advance the interests of his client. It is even more reasonable to fear that a lawyer in such circumstances will be inclined to pursue both culpable and blameless defendants to the last ditch in order to achieve his [p446] ideological goals. [n4] Although individual litigants, including the ACLU, may be free to use the courts for such purposes, South Carolina is likewise free to restrict the activities of the members of its Bar who attempt to persuade them to do so. I can only conclude that the discipline imposed upon Primus does not violate the Constitution, and I would affirm the judgment of the Supreme Court of South Carolina.
1. The Court carefully reserves judgment on factual circumstances in any way distinguishable from those presented here. For instance, the Court suggests that different considerations would arise if Primus herself had received any benefit from the solicitation, or if her income depended in any way on the outcome of the litigation. Ante at 428-429, n. 21, 436 n. 30. Likewise, the Court emphasizes that the lawyers conducting the litigation would have taken no share had attorney's fees been awarded by the court. Ante at 430 n. 24. Finally, the Court points out that Williams had not "communicated unambiguously a decision against litigation," ante at 435 n. 28, that the solicitation was not effected in person, ante at 435, and that legal services were offered free of charge, ante at 437. All these reservations seem to imply that a State might be able to raise an absolute prohibition against any of these factual variations, even "[i]n the context of political expression and association." Ante at 437-438. But see ante, p. 439 (BLACKMUN, J., concurring). On the other hand, in Ohralik, post at 463 n. 20, the Court appears to give a broader reading to today's holding.
We hold today in Primus that a lawyer who engages in solicitation as a form of protected political association generally may not be disciplined without proof of actual wrongdoing that the State constitutionally may proscribe.
2. Of all our cases recognizing the protected status of "collective activity undertaken to obtain meaningful access to the courts," United Transportation Union v. Michigan Bar, 401 U.S. 576, 585 (1971), only Button involves the solicitation of nonmembers of the organization. See United Transportation Union, supra at 577-578; Mine Workers v. Illinois Bar Assn., 389 U.S. 217, 218 (1967); Railroad Trainmen v. Virginia Bar, 377 U.S. 1, 7 (1964).
3. In Button, the Commonwealth did not attempt to discipline the individual lawyers for their role in the solicitation. The Court's statement that
the activities of the . . . legal staff shown on this record are modes of expression and association protected by the First and Fourteenth Amendments which Virginia may not prohibit,
371 U.S. at 428-429, is therefore technically dictum. Thus, the Court's conclusion today that a State may not discipline a member of its bar for soliciting an individual not already engaged in the sort of collective activity protected under our cases is as unprecedented as it is unsound.
4. In the case with which Primus was concerned, the last ditch was the denial of certiorari in this Court after the Court of Appeals for the Fourth Circuit had held that Pierce had not, in fact, acted under color of state law. Walker v. Pierce, 560 F.2d 609 (CA4 1977), cert. denied, 434 U.S. 1075 (1978).