Ohralik v. Ohio State Bar Association
436 U.S. 447 (1978)
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Rule of Law:
A state may constitutionally discipline a lawyer for soliciting clients in person for pecuniary gain because such conduct poses inherent dangers of overreaching, undue influence, and invasion of privacy that the state has a compelling interest in preventing.
Facts:
- After learning of a car accident from a postmaster, attorney Albert Ohralik visited the parents of one of the victims, 18-year-old Carol McClintock.
- Ohralik then went to the hospital and approached McClintock while she was in traction, offering to represent her.
- He visited the accident scene, took photographs, and went to the McClintock home with a concealed tape recorder to discuss the case further.
- Ohralik obtained the name of the other victim, 18-year-old Wanda Lou Holbert, from the McClintocks.
- He then visited Holbert uninvited at her home on the day she was released from the hospital, also with a concealed tape recorder.
- Ohralik informed Holbert about a potential recovery under the McClintocks' uninsured motorist policy and persuaded her to orally agree to his representation for a contingent fee.
- When Holbert's mother tried to cancel the agreement the next day, Ohralik refused and insisted it was binding.
- McClintock also eventually discharged Ohralik, who then sued her for breach of contract and settled for one-third of her insurance recovery.
Procedural Posture:
- Carol McClintock and Wanda Lou Holbert filed complaints against attorney Albert Ohralik with the Geauga County Bar Association.
- The complaint was referred to the Ohio State Bar Association (appellee), which filed a formal complaint with the Board of Commissioners on Grievances and Discipline of the Supreme Court of Ohio.
- After a hearing, the Board found Ohralik (appellant) violated state disciplinary rules and recommended a public reprimand.
- The Supreme Court of Ohio, the state's highest court, adopted the Board's factual findings but increased the sanction to an indefinite suspension of Ohralik's law license.
- Ohralik appealed the judgment of the Supreme Court of Ohio to the U.S. Supreme Court.
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Issue:
Does a state's disciplinary rule prohibiting in-person solicitation of clients for pecuniary gain by an attorney violate the First and Fourteenth Amendments' protections for commercial speech?
Opinions:
Majority - Mr. Justice Powell
No. A state's rule prohibiting in-person solicitation for pecuniary gain does not violate the First Amendment. Unlike the truthful advertising protected in Bates, in-person solicitation is a business transaction where speech is a subordinate component. The state has a compelling interest in protecting consumers and maintaining professional standards, particularly by preventing fraud, undue influence, overreaching, and other vexatious conduct inherent in such solicitation. This form of communication exerts pressure, demands an immediate response without opportunity for reflection, and is not open to public scrutiny. The state may therefore employ a prophylactic rule to prevent these harms without needing to prove actual injury occurred in a specific case, especially when the targets of solicitation are vulnerable, as the accident victims were here.
Concurring - Mr. Justice Marshall
No. The state may constitutionally discipline Ohralik for his conduct. Ohralik's actions represent a classic case of 'ambulance chasing,' fraught with obvious potential for misrepresentation and overreaching against vulnerable, young accident victims. The objectionable behavior was not merely the solicitation itself, but the circumstances and means by which he accomplished it, including covertly recording conversations. However, the Court's holding should be limited to these specific facts. A sweeping ban on all solicitation risks impeding the flow of important information to consumers about their legal rights, and such rules have historically had a discriminatory impact on solo and small-firm practitioners.
Concurring - Mr. Justice Rehnquist
No. For the reasons stated in my dissenting opinion in the companion case, In re Primus, I concur in the judgment of the Supreme Court of Ohio.
Analysis:
This decision establishes a critical distinction between protected commercial speech, such as truthful lawyer advertising, and unprotected or less-protected commercial conduct, such as in-person solicitation for profit. By allowing states to implement prophylactic bans on solicitation, the Court affirmed the state's strong regulatory authority over the legal profession. It lowers the level of scrutiny for regulations targeting the method of communication when that method itself creates a high risk of consumer harm, such as coercion or undue influence. This precedent allows bar associations to enforce stricter ethical rules against direct client recruitment for financial gain, reinforcing the idea that the potential for harm can outweigh the informational value of certain commercial speech.
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