436 U.S. 412 (1978), 77-56, In re Primus

Docket Nº:No. 77-56
Citation:436 U.S. 412, 98 S.Ct. 1893, 56 L.Ed.2d 417
Party Name:In re Primus
Case Date:May 30, 1978
Court:United States Supreme Court

Page 412

436 U.S. 412 (1978)

98 S.Ct. 1893, 56 L.Ed.2d 417

In re Primus

No. 77-56

United States Supreme Court

May 30, 1978

Argued January 16, 1978



Appellant, a practicing lawyer in South Carolina who was also a cooperating lawyer with a branch of the American Civil Liberties Union (ACLU), after advising a gathering of women of their legal rights resulting from their having been sterilized as a condition of receiving public medical assistance, informed one of the women in a subsequent letter that free legal assistance was available from the ACLU. Thereafter, the disciplinary Board of the South Carolina Supreme Court charged and determined that appellant, by sending such letter, had engaged in soliciting a client in violation of certain Disciplinary Rules of the State Supreme Court, and issued a private reprimand. The court adopted the Board's findings and increased the sanction to a public reprimand.

Held: South Carolina's application of its Disciplinary Rules to appellant's solicitation by letter on the ACLU's behalf violates the First and Fourteenth Amendments. NAACP v. Button, 371 U.S. 415, followed; Ohralik v. Ohio Bar Assn., post, p. 447, distinguished. Pp. 421-439.

(a) Solicitation of prospective litigants by nonprofit organizations that engage in litigation as "a form of political expression" and "political association" constitutes expressive and associational conduct entitled [98 S.Ct. 1895] to First Amendment protection, as to which government may regulate only "with narrow specificity," Button, supra at 429, 431, 433. Pp. 422-425.

(b) Subsequent decisions have interpreted Button as establishing the principle that "collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment," United Transportation Union v. Michigan Bar, 401 U.S. 576, 585, and have required that "broad rules framed to protect the public and to preserve respect for the administration of justice" must not work a significant impairment of "the value of associational freedoms," Mine Workers v. Illinois Bar Assn., 389 U.S. 217, 222. P. 426.

(c) Appellant's activity in this case comes within the generous zone of protection reserved for associational freedoms because she engaged in solicitation by mail on behalf of a bona fide, nonprofit organization that pursues litigation as a vehicle for effective political expression and association, as well as a means of communicating useful information to the public. There is nothing in the record to suggest that the ACLU

Page 413

or its South Carolina affiliate is an organization dedicated exclusively to providing legal services, or a group of attorneys that exists for the purpose of financial gain through the recovery of counsel fees, or a mere sham to evade a valid state rule against solicitation for pecuniary gain. Pp. 426-432.

(d) The Disciplinary Rules in question, which sweep broadly, rather than regulating with the degree of precision required in the context of political expression and association, have a distinct potential for dampening the kind of "cooperative activity that would make advocacy of litigation meaningful," Button, supra at 438, as well as for permitting discretionary enforcement against unpopular causes. P. 433.

(e) Although a showing of potential danger may suffice in the context of in-person solicitation for pecuniary gain under the decision today in Ohralik, 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. P. 434.

(f) The record does not support appellee's contention that undue influence, overreaching, misrepresentation, invasion of privacy, conflict of interest, or lay interference actually occurred in this case. And the State's interests in preventing the "stirring up" of frivolous or vexatious litigation and minimizing commercialization of the legal profession offer no further justification for the discipline administered to appellant. Pp. 434-437.

(g) Nothing in this decision 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 ACLU. Pp. 438-439.

268 S.C. 259, 233 S.E.2d 301, reversed.

POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and STEVENS, JJ., joined, and in all but the first paragraph of Part VI of which MARSHALL, J., joined. BLACKMUN, J., filed a concurring opinion, post, p. 439. MARSHALL, J., filed an opinion concurring in part and concurring in the judgment, post, p. 468. REHNQUIST, J., filed a dissenting opinion, post, p. 440. BRENNAN, J., took no part in the consideration or decision of the case.

Page 414

POWELL, J., lead opinion

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 [98 S.Ct. 1896] 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 (1963), we noted probable jurisdiction.


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,"1 and was an officer of and cooperating lawyer with the Columbia branch of the American Civil Liberties Union (ACLU).2 She received

Page 415

no compensation for her work on behalf of the ACLU,3 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.4 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

Page 416

them and because Williams wanted "[t]o see what it was all about. . . ." App. 412. 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.

Early in August, 1973, the ACLU informed appellant that it was willing to provide representation for Aiken mothers who had been sterilized.5 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, 19736 -- the centerpiece of this

Page 417

litigation -- Wllliams 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.

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,7

Page 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. 71 75 (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 (1978).8 Following denial of appellant's motion to dismiss, App. 77-82, she testified in her own behalf and called [98 S.Ct. 1898] Allen, a number of ACLU representatives, and several character witnesses.9

The panel filed a report recommending that appellant be found guilty of soliciting a client on behalf of the ACLU, in violation of Disciplinary...

To continue reading