The Gazette 1982

g a z e t t e

april 1982

refining and clarifying the decision in Bates. This article concerns itself with two such cases, viz, Ohralik v. Ohio State Bar Association and In Re Primus , argued together on 16th January 1978 and decided on 30th May 1978. In Bates 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'. In Ohralik the court held that a state, normally by way of its bar association, may, consistently with the Constitution, discipline a lawyer for soliciting clients in person, for pecuniary gain. But in the case of In Re Primus the court distinguishes the activity of a lawyer such as Albert Ohralik and that of lawyers associated with a non- profit organisation, engaging in litigation as a form of political expression, holding that solicitation of prospective litigants is protected by the First Amendment. The facts of the two cases are briefly rehearsed. Ohralik Albert Ohralik, then a practising member of the Ohio State Bar, learned in casual conversation with the postmaster's brother as he collected his mail on 13th February 1974, that Carol McClintock, a young woman with whom Ohralik was casually acquainted, had been injured in an automobile accident on 2nd February 1974. Ohralik telephoned the girl's parents, who told him that she was in hospital. He suggested that he might visit her there. Mrs McClintock agreed, on condition that he call in to see the McClintocks before going on to see Carol. The McClintocks explained, during this visit, that Carol had been involved in an automobile collision in the family car with an uninsured motorist. Both Carol and her passenger, Wanda Lou Holbert, were injured and admitted to hospital as a result. The McClintocks evinced anxiety lest Holbert sue them, but Ohralik indicated that Ohio's guest statute would preclude this. Ohralik suggested, none the less, that the McClintocks hire a lawyer, but they responded that this would be a matter for Carol, who was eighteen years of age. Ohralik then went to the hospital and interviewed Carol. He said that he would represent her and asked her to sign an agreement. Carol said that she would like to discuss the matter with her parents and asked Ohralik to have them visit her. Despite the absence of an agreement to represent her, Ohralik went to considerable lengths to obtain photographs of Carol, still in traction as a result of the accident. Ohralik also tried to see Holbert but failed, since she had already been discharged. Ohralik revisited the McClintocks, having photographed the scene of the accident and having concealed a tape- recorder on his person. He studied their insurance policy and discussed the legal issues with them. He discovered that the policy would provide up to $ 12,500 each for Carol and Holbert, under a clause relating to accidents with uninsured motorists. Mrs McClintock acknowledged that either, indeed both, Carol or Holbert could sue, but stressed that "Wanda swore . . . she would not do it'. Ohralik was also told that Carol had telephoned, saying that he could 'go ahead'. Two days later he returned to the hospital where Carol signed an agreement which provided

for Ohralik's receiving one-third of whatever sum might be recovered. Ohralik also discovered Holbert's address by representing to the McClintocks that he required to question her about the accident. He then visited her at home, quite uninvited. Again, he covertly tape-recorded much of the conversation. He told her that he had a 'little tip', namély, that the McClintocks' insurance policy contained a clause which might provide her with up to $ 12,500. He asked her if she wished to file a claim. Wanda Lou, eighteen, and not yet a high school graduate, said that she did not understand, but when Ohralik offered to represent her, also on the basis of a one-third contingent fee, she said, 'OK', apparently at Ohralik's suggestion that this would suffice to indicate assent. The following day, Mrs Holbert sought to repudiate this oral assent, stating that neither she nor Wanda Lou wanted to sue anyone, nor did they want legal representation and, if they did, they would consult their family lawyer. Ohralik insisted that Wanda Lou had entered into a binding contract. One month later, Wanda Lou, herself, wrote saying, again, that she did not want to sue anyone and did not wish to be represented by Ohralik. She requested that he intimate to the insurance company that he was not representing her. Actually, the insurance company were willing to pay up but were unready to do so as long as Ohralik claimed and Wanda Lou denied that he represented her. Before he would 'disavow further interest and claim' he insisted that Wanda Lou first pay him about $2,500, being one-third of his 'conservative' estimate of her claim, and he even initiated court action for recovery of this sum. Carol McClintock also sought to discharge Ohralik. Another lawyer represented her and concluded a settlement of $12,500 with the insurance company. Ohralik successfully sued for his third of this sum, that is, for $4,166.66. Incidentally, the fees for the other lawyer who acted for Carol amounted to only $900. Hardly surprisingly, both young ladies filed complaints against Ohralik with the appropriate County Bar Associa- tion. The Association filed formal complaints with the Board of Commissioners on Grievance and Discipline of the Supreme Court of Ohio. The Board determined that Ohralik had violated Disciplinary Rules of the Ohio Code of Professional Responsibility, primarily those directed towards discouraging lawyers from suggesting that a non- lawyer take legal action and, should that happen, from recommending themselves or their close associates. The Board imposed a public reprimand. On the Constitutional question, the Supreme Court of Ohio held that Ohralik's 'commercial speech' did not fall within First Amendment protection and increased the sanction to indefinite suspension. On appeal, the us Supreme Court affirmed this interpretation of the First Amendment. Whatever this case teaches about advertising — and one might properly feel that it is concerned solely with the quite distinct question of solicitation — the lawyer on this side of the Atlantic is bound to regard it as providing compelling evidence (as if any were necessary) that a contingent fee system of litigation is wholly detrimental to the interests of clients and to the image of the profession.

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