LOCATION: Supreme Court of South Carolina
DOCKET NO.: 77-56
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: South Carolina Supreme Court
CITATION: 436 US 412 (1978)
ARGUED: Jan 16, 1978
DECIDED: May 30, 1978
Richard B. Kale, Jr. – for appellee
Ray P. McClain – for appellant
Facts of the case
Edna Smith Primus was a practicing attorney who worked for a private law firm and was also affiliated with the American Civil Liberties Union (ACLU), a non-profit organization. She received no compensation for her work with ACLU. In her capacity as a lawyer at the private firm, Primus discovered women were being sterilized. Primus spoke to a group of the sterilized women to advise them of their legal rights and suggested the possibility of a lawsuit. One of these women, Mary Etta Williams, decided she wanted to sue her doctor over her sterilization. Primus then informed Williams through a letter of the ACLU’s offer of free legal representation. Shortly after, Williams visited the doctor who sterilized her, signed a release of liability, and notified Primus she no longer intended to sue.
A few months later, the Secretary of the Board of Commissioners on Grievances and Discipline of the Supreme Court of South Carolina (Board) filed a complaint that charged Primus with solicitation in violation of the Canons of Ethics, a code of professional conduct for lawyers. The Supreme Court of South Carolina, in accordance with the Board’s panel recommendation, found Primus in violation of regulations regarding solicitation. Primus appealed and argued that the disciplinary action violated the First Amendment’s protection of freedom of speech.
Can a state punish an attorney who advises someone of her legal rights and discloses that free legal assistance is available from a non-profit organization with which the attorney is affiliated?
Media for In re Primus
Audio Transcription for Opinion Announcement – May 30, 1978 in In re Primus
William J. Brennan, Jr.:
The opinions and the judgments of the Court in cases 76-1650, 77-56 and 77-5549 will be announced by Mr. Justice Powell.
Lewis F. Powell, Jr.:
The first case which is 77-56, In Re Edna Smith Primus, two of the decisions that I am authorized to announce today, involve disciplinary action by State Bars against Lawyers charged with solicitation.
The cases present contrasting examples of solicitation.
One type that we hold protected by the First Amendment and the other a type we think the state may forbid.
The first case, the name of which I had mentioned, is here on appeal from the Supreme Court of South California.
Appellant, a member of the bar of that state also is a cooperating lawyer with the Columbia, South Carolina branch of the American Civil Liberties Union.
After advising a group of lay persons as to civil rights’ claims, appellant wrote, one of them, a letter advising that free legal assistance would be available from the ACLU, if it were desired.
The South Carolina Bar, acting pursuant to state authority, initiated a disciplinary proceedings against appellate.
She was charged with violating the standard of professional conduct that proscribes the solicitation of clients.
She was found guilty of violating the standard, and received a public reprimand.
In a case here in 1963, NAACP versus Button, the Court held that members of that association, including lawyers as well as lay persons engage in litigation as a form of political expression.
As these activities are protected by the First Amendment, the Court held that NAACP members lawfully could advise prospective litigants of their constitutional rights, and recommend NAACP compensated lawyers to represent them.
We think that the Court’s decision in Button controls this case.
The appellant here sought no client or professional employment for herself.
As a member the ACLU, she gave legal advice as to civil rights and followed them up with an offer of professional services not her own but an ACLU lawyer.
That organization engages a litigation not for profit, but as an effective form of political expression in furtherance of rights though to be protected by the Constitution.
As we may clear in the next case, the state interest in regulating licensed members of the legal profession is substantial, but where political and associational rights are being exercised, the regulation must be narrowly drawn and focused on protecting the public for overreaching undue influence conflict of interest and other substantive evils.
We hold that South Carolina’s application of its rules to appellants’ solicitation on the behalf of ACLU, violates the First and Fourteenth Amendments.
We, therefore, reverse the decision of the Supreme Court of that state.
Mr. Justice Blackmun has filed a concurring opinion.
Mr. Justice Marshall has filed an opinion in number 76-60 and 50 which is the next case I shall announce, in which he concurs in part, and concurs in the judgment of this case.
Mr. Justice Rehnquist has filed a dissenting opinion, Mr. Justice Brennan took no part in the consideration or decision of the case.