In re Primus
436 U.S. 412 (1978)
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Rule of Law:
A state may not, consistent with the First and Fourteenth Amendments, punish a lawyer who, seeking to advance political and ideological goals through litigation on behalf of a nonprofit organization, advises a lay person of her legal rights and subsequently offers free legal assistance from that organization.
Facts:
- In the summer of 1973, reports emerged that pregnant women receiving public assistance in Aiken County, South Carolina, were being sterilized as a condition of continued medical aid.
- Edna Smith Primus, a lawyer cooperating with the American Civil Liberties Union (ACLU), was asked to address some of the sterilized women at a meeting.
- At the July 1973 meeting, Primus advised Mary Etta Williams and others of their legal rights and the possibility of filing a lawsuit.
- In August 1973, the ACLU informed Primus that it was willing to provide free legal representation for the sterilized mothers.
- Primus was later informed by an acquaintance of Williams that Williams wished to initiate a suit against her doctor.
- On August 30, 1973, Primus sent a letter to Williams informing her that the ACLU would like to file a lawsuit on her behalf for free.
- Shortly after receiving the letter, Williams met with her doctor and his lawyer, signed a release of liability, and then called Primus to state she did not wish to sue.
Procedural Posture:
- The Secretary of the Board of Commissioners on Grievances and Discipline of the Supreme Court of South Carolina filed a formal complaint against Edna Smith Primus for unethical solicitation.
- A hearing panel of the Board found Primus guilty and recommended a private reprimand.
- The full Board approved the panel's findings and administered a private reprimand.
- Primus appealed the Board's decision to the Supreme Court of South Carolina.
- The Supreme Court of South Carolina, a state's highest court, adopted the Board's findings but increased the sanction from a private to a public reprimand.
- Primus (appellant) then appealed the judgment of the Supreme Court of South Carolina to the Supreme Court of the United States.
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Issue:
Does South Carolina's application of its attorney disciplinary rules to punish a lawyer for soliciting a prospective litigant by letter on behalf of a nonprofit organization like the ACLU, for the purpose of advancing political and ideological goals rather than for pecuniary gain, violate the First and Fourteenth Amendments?
Opinions:
Majority - Justice Powell
Yes, South Carolina's disciplinary action violates the First and Fourteenth Amendments. A lawyer's solicitation of a client on behalf of a nonprofit organization that engages in litigation as a form of political expression and association is entitled to constitutional protection. This case is governed by NAACP v. Button, which established that collective activity to obtain meaningful access to courts is a fundamental First Amendment right. Primus's actions were not motivated by pecuniary gain but by a desire to advance the civil-liberties objectives of the ACLU, making her solicitation a form of protected political expression, not commercial speech. The state's broad prophylactic rules against solicitation cannot be applied here without a showing of actual misconduct such as undue influence, overreaching, or misrepresentation, none of which were present. Because the state's action burdens core First Amendment rights, it must withstand 'exacting scrutiny,' and the state failed to demonstrate a compelling interest that would justify this abridgment of associational freedoms.
Dissenting - Justice Rehnquist
No, South Carolina's disciplinary action does not violate the First and Fourteenth Amendments. There is no principled basis for distinguishing between the 'political' solicitation in this case and the 'commercial' solicitation in the companion case, Ohralik. The state has a strong interest in protecting the public from the potential evils of lawyer solicitation, regardless of the lawyer's motive. The Court's distinction between commercial and political speech is subject to manipulation. NAACP v. Button concerned the collective activity of an organization, whereas Primus engaged in uninvited, individual solicitation of a specific person. A state may reasonably fear that a lawyer's ideological zeal could take precedence over the client's best interests and may therefore prophylactically regulate such conduct.
Concurring - Justice Blackmun
Yes, I join the majority opinion but write separately to express caution about the dicta in Part VI. While the Court's decision is correct, it was unnecessary to delineate the precise contours of permissible state regulation regarding misleading statements in the context of political solicitation. The resolution of how to balance state interests against First Amendment values when a misstatement occurs should be postponed until a case directly presents that issue.
Analysis:
In re Primus establishes a critical distinction between attorney solicitation for commercial purposes and solicitation for political or ideological expression. By applying 'exacting scrutiny' to the latter, the Court significantly expanded the First Amendment protections for public interest litigation established in NAACP v. Button. This decision creates a two-tiered framework for regulating attorney solicitation: states have broad power to prohibit in-person solicitation for pecuniary gain (as held in the companion case, Ohralik v. Ohio State Bar Assn.), but their power to regulate solicitation aimed at political expression is severely limited. This holding protects the ability of organizations like the ACLU to seek out litigants to advance their constitutional goals through the courts.
