RESPONDENT: Ohio State Bar Assn.
LOCATION: Lake East Hospital
DOCKET NO.: 76-1650
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: Ohio Supreme Court
CITATION: 436 US 447 (1978)
ARGUED: Jan 16, 1978
DECIDED: May 30, 1978
Eugene Gressman - for appellant
John R. Welch - for appellee
Facts of the case
In February 1974, 18-years-olds Carol McClintock and Wanda Lou Holbert were seriously injured when an uninsured motorist hit the vehicle McClintock was driving in their hometown of Montville, Ohio. When Albert Ohralik, a local attorney, learned of the accident, he visited McClintock in the hospital and offered to represent her in exchange for a portion of the proceeds collected from her insurer. Ohralik also approached Holbert at her home and obtained her oral assent to representation, which he secretly tape-recorded. Both women eventually discharged Ohralik and filed grievances with the local bar association, which in turn filed a formal complaint against Ohralik with the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio (Board). The Board found that Ohralik violated provisions of the Ohio Code of Professional Responsibility that banned a lawyer’s in-person solicitation of employment to a non-lawyer and publicly reprimanded him. On appeal, the Supreme Court of Ohio rejected Ohralik’s claim that his conduct was protected under the First and Fourteenth Amendments and increased the sanction against Ohralik to indefinite suspension.
Do professional ethics rules for the legal profession that ban in-person solicitation of non-lawyers violate free speech guarantees under the First and Fourteenth Amendments?
Media for Ohralik v. Ohio State Bar Assn.Audio Transcription for Oral Argument - January 16, 1978 in Ohralik v. Ohio State Bar Assn.
Audio Transcription for Opinion Announcement - May 30, 1978 in Ohralik v. Ohio State Bar Assn.
Lewis F. Powell, Jr.:
The second case involving solicitation by a lawyer is 76-1650, Ohralik against the Ohio State Bar Association.
It comes to us on appeal from the Supreme Court of Ohio.
The solicitation in this case is quite different from that I have just described in Primus.
The appellant, an Ohio lawyer, professionally solicited two young women who had been injured and hospitalized following an automobile accident.
He approached one in the hospital room while she was in traction.
He solicited the other at her home the day after she left the hospital.
He advised both of them that they had good claims for damages and offered to represent to each of them on a contingent fee basis of one-third of any recovery.
The young women separately agreed to the tender representation, but thereafter sought to discharge appellant.
But he resisted, they file complaints with the local bar grievance committee.
After due proceedings and on appeal to the Supreme Court of Ohio, appellant was found guilty of violating the Disciplinary Rules against solicitation.
The court rejected appellant's reliance on the First and Fourteenth Amendments.
In Bates against the State Bar of Arizona, decided last term, the Court held that lawyers could not be disciplined for truthfully advertising the availability of routine legal services.
Such advertisement were viewed as commercial speech, entitled to a measure of constitutional protection.
The Court reserved the question in that case as to the right of a state to discipline lawyers for in-person commercial solicitation.
The state has a strong interest in protecting the public from the aspects of solicitation that potentially involved fraud, undue influence, overreaching, and other forms of vexatious conduct.
As appellant solicited employment for pecuniary gain under circumstances likely to result in these evils, we hold that the state interest out ways the First Amendment interest.
We, therefore, affirm the judgment of the Supreme Court of Ohio.
Mr. Justice Marshall filed an opinion concurring in part and concurring in the judgment.
Mr. Rehnquist concurred in the judgment.
Mr. Justice Brennan took no part in the consideration or decision of this case.