In re Edna Smith PRIMUS

Supreme Court of the United States
Argued Jan. 16, 1978.
Decided May 30, 1978.
436 U.S. 412, 98 S.Ct. 1893

*414 Mr. Justice POWELL delivered the opinion of the Court.

We consider on this appeal whether a State may punish a member of its Bar who, seeking to further political and ideological goals through associational activity, including litigation, advises a lay person of her legal rights and discloses in a subsequent letter that free legal assistance is available from a nonprofit organization with which the lawyer and her associates are affiliated. Appellant, a member of the Bar of South Carolina, received a public reprimand for writing such a letter. The appeal is opposed by the State Attorney General, on behalf of the Board of Commissioners on Grievances and Discipline of the Supreme Court of South Carolina. As this appeal presents a substantial question under the First and Fourteenth Amendments, as interpreted in NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), we noted probable jurisdiction.

I

Appellant, Edna Smith Primus, is a lawyer practicing in Columbia, S. C. During the period in question, she was associated with the "Carolina Community Law Firm," [FN1] and was an officer of and cooperating lawyer with the Columbia branch of the American Civil Liberties Union (ACLU). [FN2] She re *415 ceived no compensation for her work on behalf of the ACLU, [FN3] but was paid a retainer as a legal consultant for the South Carolina Council on Human Relations (Council), a nonprofit organization with offices in Columbia.

During the summer of 1973, local and national newspapers reported that pregnant mothers on public assistance in Aiken County, S. C., were being sterilized or threatened with sterilization as a condition of the continued receipt of medical assistance under the Medicaid program. [FN4] Concerned by this development, Gary Allen, an Aiken businessman and officer of a local organization serving indigents, called the Council requesting that one of its representatives come to Aiken to address some of the women who had been sterilized. At the Council's behest, appellant, who had not known Allen previously, called him and arranged a meeting in his office in July 1973. Among those attending was Mary Etta Williams, who had been sterilized by Dr. Clovis H. Pierce after the birth of her third child. Williams and her grandmother attended the meeting because Allen, an old family friend, had invited *416 them and because Williams wanted "[t]o see what it was all about . . . ." App. 41-42. At the meeting, appellant advised those present, including Williams and the other women who had been sterilized by Dr. Pierce, of their legal rights and suggested the possibility of a lawsuit.

FN4. See, e. g., 3 Carolina Doctors Are Under Inquiry in Sterilization of Welfare Mothers, New York Times, July 22, 1973, p. 30, cols. 1-3.

Early in August 1973 the ACLU informed appellant that it was willing to provide representation for Aiken mothers who had been sterilized. [FN5] Appellant testified that after being advised by Allen that Williams wished to institute suit against Dr. Pierce, she decided to inform Williams of the ACLU's offer of free legal representation. Shortly after receiving appellant's letter, dated August 30, 1973 [FN6]--the centerpiece of this *417 litigation--Williams visited Dr. Pierce to discuss the progress of her third child who was ill. At the doctor's office, she encountered his lawyer and at the latter's request signed a release of liability in the doctor's favor. Williams showed appellant's letter to the doctor and his lawyer, and they retained a copy. She then called appellant from the doctor's office and announced her intention not to sue. There was no further communication between appellant and Williams.

FN6. Written on the stationery of the Carolina Community Law Firm, the letter stated:

August 30, 1973

Mrs. Marietta Williams
347 Sumter Street
Aiken, South Carolina 29801

Dear Mrs. Williams:

You will probable 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 interview 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.

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

On October 9, 1974, the Secretary of the Board of Commissioners on Grievances and Discipline of the Supreme Court of South Carolina (Board) filed a formal complaint with the Board, charging that appellant had engaged in "solicitation in violation of the Canons of Ethics" by sending the August 30, 1973, letter to Williams. App. 1-2. Appellant denied any unethical solicitation and asserted, inter alia, that her conduct was protected by the First and Fourteenth Amendments and by Canon 2 of the Code of Professional Responsibility of the American Bar Association (ABA). The complaint was heard by a panel of the Board on March 20, 1975. The State's evidence consisted of the letter, the testimony of Williams, [FN7] *418 and a copy of the summons and complaint in the action instituted against Dr. Pierce and various state officials, Walker v. Pierce, Civ. No. 74-475 (SC, July 28, 1975), aff'd in part and rev'd in part, 560 F.2d 609 (CA4 1977), cert. denied, 434 U.S. 1075, 98 S.Ct. 1266, 55 L.Ed.2d 782 (1978). [FN8] Following denial of appellant's motion to dismiss, App. 77-82, she testified in her own behalf and called Allen, a number of ACLU representatives, and several character witnesses. [FN9]

FN7. Williams testified that at the July meeting appellant advised her of her legal remedies, of the possibility of a lawsuit if her sterilization had been coerced, and of appellant's willingness to serve as her lawyer without compensation. Williams recounted that she had told appellant that because her child was in critical condition, she "did not have time for" a lawsuit and "would contact [appellant] some more." She also denied that she had expressed to Allen an interest in suing her doctor. Id., at 29-34, 58. On cross-examination, however, Williams confirmed an earlier statement she had made in an affidavit that appellant "did not attempt to persuade or pressure me to file [the] lawsuit." Id., at 52. See n. 28, infra.

FN8. This class action was filed on April 15, 1974, by two Negro women alleging that Dr. Pierce, in conspiracy with state officials, had sterilized them, or was threatening to do so, solely on account of their race and number of children, while they received assistance under the Medicaid program. The complaint sought declaratory and injunctive relief, damages, and attorney's fees, and asserted violations of the Constitution and 42 U.S.C. §§ 1981, 1983, 1985(3), and 2000d.

Bagby, one of appellant's associates in the Carolina Community Law Firm and fellow cooperating lawyer with the ACLU, was one of several attorneys of record for the plaintiffs. Buhl, another of appellant's associates and a staff counsel for the ACLU in South Carolina, also may have represented one of the women.

FN9. Appellant also offered to produce expert testimony to the effect that some measure of solicitation of prospective litigants is necessary in safeguarding the civil liberties of inarticulate, economically disadvantaged individuals who may not be aware of their legal rights and of the availability of legal counsel, App. 166-168; that the purpose of the ACLU is to advance and defend the cause of civil liberties, id., at 183- 186; and that the ACLU relies on decisions such as NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963), in advising its attorneys of the extent of constitutional protection for their litigation activities, App. 187-188. These offers of proof were rejected as not germane to the disciplinary proceeding.

The panel filed a report recommending that appellant be found guilty of soliciting a client on behalf of the ACLU, in violation of Disciplinary Rules (DR) 2-103(D)(5)(a) and (c) [FN10] and 2-104(A)(5) [FN11] of the Supreme Court of South *419 Carolina, [FN12] and that a private reprimand be issued. It noted that "[t]he evidence is inconclusive as to whether [appellant] solicited Mrs. Williams on her own behalf, but she did solicit *420 Mrs. Williams on behalf of the ACLU, which would benefit financially in the event of successful prosecution of the suit for money damages." The panel determined that appellant violated DR 2-103(D)(5) "by attempting to solicit a client for a non-profit organization which, as its primary purpose, renders legal services, where respondent's associate is a *421 staff counsel for the non-profit organization." Appellant also was found to have violated DR 2-104(A)(5) because she solicited Williams, after providing unsolicited legal advice, to join in a prospective class action for damages and other relief that was to be brought by the ACLU.

After a hearing on January 9, 1976, the full Board approved the panel report and administered a private reprimand. On March 17, 1977, the Supreme Court of South Carolina entered an order which adopted verbatim the findings and conclusions of the panel report and increased the sanction, sua sponte, to a public reprimand. 268 S.C. 259, 233 S.E.2d 301.

On July 9, 1977, appellant filed a jurisdictional statement and this appeal was docketed. We noted probable jurisdiction on October 3, 1977, sub nom. In re Smith, 434 U.S. 814, 98 S.Ct. 49, 54 L.Ed.2d 69. We now reverse.

II

This appeal concerns the tension between contending values of considerable moment to the legal profession and to society. Relying upon NAACP v. Button, 371 U.S. 415, 83 S.Ct. 3289, 9 L.Ed.2d 405 (1963), and its progeny, appellant maintains that her activity involved constitutionally protected expression and association. In her view, South Carolina has not shown that the discipline meted out to her advances a subordinating state interest in a manner that avoids unnecessary abridgment of First Amendment freedoms. [FN13] Appellee counters that appellant's letter to Williams falls outside of the protection of Button, and that *422 South Carolina acted lawfully in punishing a member of its Bar for solicitation.

The States enjoy broad power to regulate "the practice of professions within their boundaries," and "[t]he interest of the States in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been 'officers of the courts.' " Goldfarb v. Virginia State Bar, 421 U.S. 773, 792, 95 S.Ct. 2004, 2016, 44 L.Ed.2d 572 (1975). For example, we decide today in Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444, that the States may vindicate legitimate regulatory interests through proscription, in certain circumstances, of in-person solicitation by lawyers who seek to communicate purely commercial offers of legal assistance to lay persons.

Unlike the situation in Ohralik, however, appellant's act of solicitation took the form of a letter to a woman with whom appellant had discussed the possibility of seeking redress for an allegedly unconstitutional sterilization. This was not in-person solicitation for pecuniary gain. Appellant was communicating an offer of free assistance by attorneys associated with the ACLU, not an offer predicated on entitlement to a share of any monetary recovery. And her actions were undertaken to express personal political beliefs and to advance the civil-liberties objectives of the ACLU, rather than to derive financial gain. ...

Where political expression or association is at issue, this Court has not tolerated the degree of imprecision that often characterizes government regulation of the conduct of commercial affairs. The approach we adopt today in Ohralik, 436 U.S. 447, 98 S.Ct. 1912, that the State may proscribe in- person solicitation for pecuniary gain under circumstances likely to result in adverse consequences, cannot be applied to appellant's activity on behalf of the ACLU. Although a showing of potential danger may suffice in the former context, appellant may not be disciplined unless her activity in fact involved the type of misconduct at which South Carolina's broad prohibition is said to be directed.

[7] The record does not support appellee's contention that *435 undue influence, overreaching, misrepresentation, or invasion of privacy actually occurred in this case. Appellant's letter of August 30, 1973, followed up the earlier meeting--one concededly protected by the First and Fourteenth Amendments--by notifying Williams that the ACLU would be interested in supporting possible litigation. The letter imparted additional information material to making an informed decision about whether to authorize litigation, and permitted Williams an opportunity, which she exercised, for arriving at a deliberate decision. The letter was not facially misleading; indeed, it offered "to explain what is involved so you can understand what is going on." The transmittal of this letter--as contrasted with in-person solicitation-- involved no appreciable invasion of privacy; [FN28] nor did it afford any significant opportunity for overreaching or coercion. Moreover, the fact that there was a written communication lessens substantially the *436 difficulty of policing solicitation practices that do offend valid rules of professional conduct. See Ohralik, 436 U.S., at 466-467, 98 S.Ct., at 1924-1925. The manner of solicitation in this case certainly was no more likely to cause harmful consequences than the activity considered in Button, see n. 14, supra.

FN28. This record does not provide a constitutionally adequate basis for a finding, not made below, that appellant deliberately thrust her professional services on an individual who had communicated unambiguously a decision against litigation. Cf. Rowan v. Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970). For present purposes, we credit Williams' conflicting testimony to the effect that at the July meeting she told appellant that because of the condition of her child she "didn't have time to think about suing" and "if I needed you all I will call you." App. 74; see n. 7, supra. But even on that view of the testimony, appellant's letter cannot be characterized as a pressure tactic. A month had elapsed between the meeting and the letter. Not only was there a possibility that Williams' personal situation might have changed during this period, but appellant testified that Allen, a close friend of the Williams family, told her that Williams subsequently communicated to him an interest in the lawsuit; Allen corroborated this testimony. App. 115-116, 137, 195-196. In light of these circumstances, and Williams' own acknowledgment that appellant "did not attempt to persuade or pressure me to file this lawsuit," id., at 52, appellant did not go beyond the pale of constitution protection in writing a single letter for the purpose of imparting new information material to a decision whether or not to authorize litigation, and inquiring "if you are interested, let me know, and I'll let you know when we will come down to talk to you about it."

Nor does the record permit a finding of a serious likelihood of conflict of interest or injurious lay interference with the attorney-client relationship. Admittedly, there is some potential for such conflict or interference whenever a lay organization supports any litigation. ... "[N]othing that this record shows as to the nature and purpose of [ACLU] activities permits an inference of any injurious intervention in or control of litigation which would constitutionally authorize the application," id., at 444, 83 S.Ct., at 344, of the Disciplinary Rules to appellant's activity. [FN29] A "very distant possibility of harm," Mine Workers v. Illinois Bar Assn., 389 U.S., at 223, 88 S.Ct., at 356, cannot justify proscription of the activity of appellant revealed by this record. See id., at 223-224, 88 S.Ct., at 356-357. [FN30]

FN29. Although the decision whether or not to support a particular litigation is made in accordance with the ACLU's broader objectives, the organization's declared policy is to avoid all interference with the attorney-client relationship after that decision has been made. See 1976 Policy Guide of the American Civil Liberties Union, Policy # 513, p. 305.

FN30. We are not presented in this case with a situation where the income of the lawyer who solicits the prospective litigant or who engages in the actual representation of the solicited client rises or falls with the outcome of the particular litigation. See supra, at 1903-1904, and n. 24.

The State's interests in preventing the "stirring up" of frivolous or vexatious litigation and minimizing commercialization *437 of the legal profession offer no further justification for the discipline administered in this case. The Button Court declined to accept the proffered analogy to the common-law offenses of maintenance, champerty, and barratry, where the record would not support a finding that the litigant was solicited for a malicious purpose or "for private gain, serving no public interest," 371 U.S., at 440, 83 S.Ct., at 341; see id., at 439-444, 83 S.Ct., at 341- 343. The same result follows from the facts of this case. And considerations of undue commercialization of the legal profession are of marginal force where, as here, a nonprofit organization offers its services free of charge to individuals who may be in need of legal assistance and may lack the financial means and sophistication necessary to tap alternative sources of such aid. [FN31]

[8] At bottom, the case against appellant rests on the proposition that a State may regulate in a prophylactic fashion all solicitation activities of lawyers because there may be some potential for overreaching, conflict of interest, or other substantive evils whenever a lawyer gives unsolicited advice and communicates an offer of representation to a layman. Under certain circumstances, that approach is appropriate in the case of speech that simply "propose[s] a commercial transaction," Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 385, 93 S.Ct. 2553, 2558, 37 L.Ed.2d 669 (1973). See Ohralik, 436 U.S., at 455-459, 98 S.Ct., at 1918-1920. In the context *438 of political expression and association, however, a State must regulate with significantly greater precision. [FN32]

FN32. Normally the purpose or motive of the speaker is not central to First Amendment protection, but it does bear on the distinction between conduct that is "an associational aspect of 'expression'," Emerson, Freedom of Association and Freedom of Expression, 74 Yale L.J. 1, 26 (1964), and other activity subject to plenary regulation by government. Button recognized that certain forms of "cooperative, organizational activity," 371 U.S., at 430, 83 S.Ct., at 341, including litigation, are part of the "freedom to engage in association for the advancement of beliefs and ideas," NAACP v. Alabama, 357 U.S. 449, 460, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488 (1958), and that this freedom is an implicit guarantee of the First Amendment. See Healy v. James, 408 U.S. 169, 181, 92 S.Ct. 2338, 2346, 33 L.Ed.2d 266 (1972). As shown above, appellant's speech--as part of associational activity--was expression intended to advance "beliefs and ideas." In Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, the lawyer was not engaged in associational activity for the advancement of beliefs and ideas; his purpose was the advancement of his own commercial interests. The line, based in part on the motive of the speaker and the character of the expressive activity, will not always be easy to draw, cf. Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 787-788, 96 S.Ct. 1817, 1838, 48 L.Ed.2d 246 (1976) (REHNQUIST, J., dissenting), but that is no reason for avoiding the undertaking.

VI

[9][10][11] The State is free to fashion reasonable restrictions with respect to the time, place, and manner of solicitation by members of its Bar. See Bates v. State Bar of Arizona, 433 U.S., at 384, 97 S.Ct., at 2709; Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S., at 771, 96 S.Ct., at 1830, and cases cited therein. The State's special interest in regulating members whose profession it licenses, and who serve as officers of its courts, amply justifies the application of narrowly drawn rules to proscribe solicitation that in fact is misleading, overbearing, or involves other features of deception or improper influence. [FN33] As we decide today in *439 Ohralik, a State also may forbid in-person solicitation for pecuniary gain under circumstances likely to result in these evils. And a State may insist that lawyers not solicit on behalf of lay organizations that exert control over the actual conduct of any ensuing litigation. See Button, 371 U.S., at 447, 83 S.Ct., at 345 (WHITE, J., concurring in part and dissenting in part). Accordingly, nothing in this opinion should be read to foreclose carefully tailored regulation that does not abridge unnecessarily the associational freedom of nonprofit organizations, or their members, having characteristics like those of the NAACP or the ACLU.

FN33. We have no occasion here to delineate the precise contours of permissible state regulation. Thus, for example, a different situation might be presented if an innocent or merely negligent misstatement were made by a lawyer on behalf of an organization engaged in furthering associational or political interests.

We conclude that South Carolina's application of its DR2-103(D)(5)(a) and (c) and 2-104(A)(5) to appellant's solicitation by letter on behalf of the ACLU violates the First and Fourteenth Amendments. The judgment of the Supreme Court of South Carolina is

Reversed.