Ohralik v. Ohio State Bar Association, No. 76-1650

CourtUnited States Supreme Court
Writing for the CourtPOWELL
Citation98 S.Ct. 1912,56 L.Ed.2d 444,436 U.S. 447
Decision Date30 May 1978
Docket NumberNo. 76-1650
PartiesAlbert OHRALIK, Appellant, v. OHIO STATE BAR ASSOCIATION

436 U.S. 447
98 S.Ct. 1912
56 L.Ed.2d 444
Albert OHRALIK, Appellant,

v.

OHIO STATE BAR ASSOCIATION.

No. 76-1650.
Argued Jan. 16, 1978.
Decided May 30, 1978.
Rehearing Denied Oct. 2, 1978.
See 439 U.S. 883, 99 S.Ct. 226.
Syllabus

Appellant, an Ohio lawyer, contacted the parents of one of the drivers injured in an automobile accident after hearing about the accident from another source, and learned that the 18-year-old daughter was hospitalized. He then approached the daughter at the hospital and offered to represent her. After another visit with her parents, he again visited the accident victim in her hospital room, where she signed a contingent-fee agreement. In the meantime, appellant approached the driver's 18-year-old female passenger—who also had been injured—at her home on the day she was released from the hospital; she agreed orally to a contingent-fee arrangement. Eventually, both young women discharged appellant as their lawyer, but he succeeded in obtaining a share of the driver's insurance recovery in settlement of his lawsuit against her for breach of contract. As a result of complaints filed against appellant by the two young women with a bar grievance committee, appellee filed a formal complaint with the disciplinary Board of the Ohio Supreme Court. The Board found that appellant solicited clients in violation of certain Disciplinary Rules, and rejected appellant's defense that his conduct was protected by the First and Fourteenth Amendments. The Ohio Supreme Court adopted the Board's findings, and increased the Board's recommended sanction of a public reprimand to indefinite suspension. Held: The Bar, acting with state authorization, constitutionally may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent and thus the application of the Disciplinary Rules in question to appellant does not offend the Constitution. Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810, distinguished. Pp. 454-468.

(a) A lawyer's solicitation of business through direct, in-person communication with the prospective clients has long been viewed as inconsistent with the profession's ideal of the attorney-client relationship and as posing a significant potential for harm to the prospective client. P. 454.

(b) The State does not lose its power to regulate commercial activity deemed harmful to the public simply because speech is a component of that activity. Pp. 455-456.

(c) A lawyer's procurement of remunerative employment is only marginally affected with First Amendment concerns. While entitled to

Page 448

some constitutional protection, appellant's conduct is subject to regulation in furtherance of important state interests. Pp. 457-459.

(d) In addition to its general interest in protecting consumers and regulating commercial transactions, the State bears a special responsibility for maintaining standards among members of the licensed professions, especially members of the Bar. Protect on of the public from those aspects of solicitation that involve fraud, undue influence, intimidation, overreaching, and other forms of "vexatious conduct" is a legitimate and important state interest. Pp. 400-462.

(e) Because the State's interest is in averting harm by prohibiting solicitation in circumstances where it is likely to occur, the absence of explicit proof or findings of harm or injury to the person solicited is immaterial. The application of the Disciplinary Rules to appellant, who solicited employment for pecuniary gain under circumstances likely to result in the adverse consequences the State seeks to avert, does not offend the Constitution. Pp. 462-468.

48 Ohio St.2d 217, 357 N.E.2d 1097, affirmed.

Eugene Gressman, Chapel Hill, N. C., for appellant.

John R. Welch, Columbus, Ohio, for appellee.

Mr. Justice POWELL delivered the opinion of the Court.

In Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), this Court held that truthful advertising of "routine" legal services is protected by the First and Fourteenth Amendments against

Page 449

blanket prohibition by a State. The Court expressly reserved the question of the permissible scope of regulation of "in-person solicitation of clients—at the hospital room or the accident site, or in any other situation that breeds undue influence—by attorneys or their agents or 'runners.' " Id., at 366, 97 S.Ct., at 2700. Today we answer part of the question so reserved, and hold that the State—or the Bar acting with state authorization constitutionally may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent.

I

Appellant, a member of the Ohio Bar, lives in Montville, Ohio. Until recently he practiced law in Montville and Cleveland. On February 13, 1974, while picking up his mail at the Montville Post Office, appellant learned from the postmaster's brother about an automobile accident that had taken place on February 2 in which Carol McClintock, a young woman with whom appellant was casually acquainted, had been injured. Appellant made a telephone call to Ms. McClintock's parents, who informed him that their daughter was in the hospital. Appellant suggested that he might visit Carol in the hospital. Mrs. McClintock assented to the idea, but requested that appellant first stop by at her home.

During appellant's visit with the McClintocks, they explained that their daughter had been driving the family automobile on a local road when she was hit by an uninsured motorist. Both Carol and her passenger, Wanda Lou Holbert, were injured and hospitalized. In response to the McClintocks' expression of apprehension that they might be sued by Holbert, appellant explained that Ohio's guest statute would preclude such a suit. When appellant suggested to the McClintocks that they hire a lawyer, Mrs. McClintock retorted that such a decision would be up to Carol, who was 18 years old and would be the beneficiary of a successful claim.

Page 450

Appellant proceeded to the hospital, where he found Carol lying in traction in her room. After a brief conversation about her condition,1 appellant told Carol he would represent her and asked her to sign an agreement. Carol said she would have to discuss the matter with her parents. She did not sign the agreement, but asked appellant to have her parents come to see her.2 Appellant also attempted to see Wanda Lou Holbert, but learned that she had just been released from the hospital. App. 98a. He then departed for another visit with the McClintocks.

On his way appellant detoured to the scene of the accident, where he took a set of photographs. He also picked up a tape recorder, which he concealed under his raincoat before arriving at the McClintocks' residence. Once there, he re-examined their automobile insurance policy, discussed with them the law applicable to passengers, and explained the consequences of the fact that the driver who struck Carol's car was an uninsured motorist. Appellant discovered that the McClintocks' insurance policy would provide benefits of up to $12,500 each for Carol and Wanda Lou under an uninsured-motorist clause. Mrs. McClintock acknowledged that both Carol and Wanda Lou could sue for their injuries, but recounted to appellant that "Wanda swore up and down she would not do it." Ibid. The McClintocks also told appellant that Carol had phoned to say that appellant could "go ahead" with her representation. Two days later appellant returned to Carol's hospital room to have her sign a contract, which provided that he would receive one-third of her recovery.

Page 451

In the meantime, appellant obtained Wanda Lou's name and address from the McClintocks after telling them he wanted to ask her some questions about the accident. He then visited Wanda Lou at her home, without having been invited. He again concealed his tape recorder and recorded most of the conversation with Wanda Lou.3 After a brief, unproductive inquiry about the facts of the accident, appellant told Wanda Lou that he was representing Carol and that he had a "little tip" for Wanda Lou: the McClintocks' insurance policy contained an uninsured-motorist clause which might provide her with a recovery of up to $12,500. The young woman, who was 18 years of age and not a high school graduate at the time, replied to appellant's query about whether she was going to file a claim by stating that she really did not understand what was going on. Appellant offered to represent her, also, for a contingent fee of one-third of any recovery, and Wanda Lou stated "O. K." 4

Wanda's mother attempted to repudiate her daughter's oral assent the following day, when appellant called on the tele-

Page 452

phone to speak to Wanda. Mrs. Holbert informed appellant that she and her daughter did not want to sue anyone or to have appellant represent them, and that if they decided to sue they would consult their own lawyer. Appellant insisted that Wanda had entered into a binding agreement. A month later Wanda confirmed in writing that she wanted neither to sue nor to be represented by appellant. She requested that appellant notify the insurance company that he was not her lawyer, as the company would not re ease a check to her until he did so.5 Carol also eventually discharged appellant. Although another lawyer represented her in concluding a settlement with the insurance company, she paid appellant one-third of her recovery 6 in settlement of his lawsuit against her for breach of contract.7

Both Carol McClintock and Wanda Lou Holbert filed complaints against appellant with the Grievance Committee of the Geauga County Bar Association. The County Bar Association referred the grievance to appellee, which filed a formal complaint with the Board of Commissioners on Grievances

Page 453

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    ...is subject to "modes of regulation that might be impermissible in the realm of noncommercial expression." Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 456, 98 S.Ct. 1912, 1918, 56 L.Ed.2d 444 (1978). The ample scope of regulatory authority suggested by such statements would be illusory if......
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784 cases
  • Board of Trustees of State University of New York v. Fox, No. 87-2013
    • United States
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    ...is subject to "modes of regulation that might be impermissible in the realm of noncommercial expression." Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 456, 98 S.Ct. 1912, 1918, 56 L.Ed.2d 444 (1978). The ample scope of regulatory authority suggested by such statements would be illusory if......
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    ...88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968) (burning draft card found to be unprotected speech); accord Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456, 98 S.Ct. 1912, 1918, 56 L.Ed.2d 444 (1978); see also Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 1793, 10 L.Ed.2d 965 (1963) (......
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