The Gazette 1982

april 1982

g a z e t t e

the legal profession, the solicitation of prospective litigants for the purpose of furthering civil rights because such solicitation falls within the right to engage in association for the advancement of beliefs and ideas. One should never forget that instruments such as the American Constitution, whatever their tenor, and however uncompromisingly expressed, simply are not absolute in operation. Thus, even, after Bates, which extends First Amendment protection to price advertising by lawyers, states retained the power to regulate lawyer advertising and the legal profession. The states retain a broad power to regulate the practice of professions within their boundaries. Indeed, 'the interest of the states in regulating lawyers is especially great since lawyers are essential to the primary governmental function of administering justice, and have historically been "officers of the courts" ' ( Goldfarb v. Virginia State Bar, 421 us 773, 792 (1975)). Ohralik demonstrates that the states' powers may quite properly restrict what lawyers may say and do, even where 'speech', including 'commercial speech', is normally protected by the First Amendment so that state laws restricting it risk declaration of unconstitutionality. But Primus raises a countervailing value, namely, political association for the advancement of beliefs and ideas. And that places limits on what a state properly can do. Even if a state is entitled to regulate its legal profession, it cannot enact such regulations as cut excessively into associated rights of beliefs and ideas. Ultimately, in the language of American constitutional law, the difference between Ohralik and Primus is a difference in the appropriate level of judicial scrutiny.

Primus Edna Smith Primus is a practising lawyer in South Carolina. At the relevant time she was (a) associated with the 'Carolina Community Law Firm', an expense-sharing arrangement with each attorney keeping his own fees, which subsequently changed its name to 'Bohl, Smith and Bagby'; (b) an officer and an unpaid co-operating lawyer with the Columbia branch of the American Civil Liberties Union (ACLU); and (c) a legal consultant, paid a retainer, for the South Carolina Council on Human Relations. As can be imagined, reports that pregnant mothers in receipt of public assistance were being sterilised or threatened with sterilisation as a condition of receipt of medical assistance gave rise to disquiet. A call was made to the Council to send a representative to speak to women who had been sterilised. The Council sent Primus, who addressed a meeting advising those present, including one Mary Etta Williams who had been sterilised by Dr Clovis H. Pierce after the birth of her third child, of their legal rights and of the possibility of a law suit. This was in July 1973. In August 1973 the ACLU informed Primus that it was willing, in furtherance of its role as a national non-partisan organisation defending the Bill of Rights for all without distinction or compromise, to provide representation for sterilised mothers. Primus, having been informed by the organisers of the July meeting that Williams wished to sue Dr Pierce, wrote informing Williams of the ACLU'S offer of free legal representation. Not long after receiving that letter, Williams visited Dr Pierce regarding an illness of her third child. At the doctor's office she met his lawyer, who asked her to sign a release of liability for Dr Pierce. Williams showed that lawyer and Dr Pierce the letter from Primus. They retained a copy. She telephoned and stated that she did not intend to sue. This concluded the communication between Williams and Primus. The Secretary of the Board of Commissioners on Grievances and Discipline of the Supreme Court of South Carolina filed a formal complaint charging Primus with 'solicitation in violation of Canons and Ethics'. Primus denied the charge, founding among other things upon the First Amendment. A panel of the Board determined that Primus was guilty of solicitation contrary to Disciplinary Rules. The panel accepted that the evidence was inconclusive as regards solicitation by Primus on her own behalf, but it took the view that she did solicit Williams on behalf of the ACLU. The panel thus interpreted the Dis- ciplinary Rules as prohibiting solicitation of a client for a non-profit organisation. The full Board approved the panel report and administered the private reprimand which the report had recommended. The Supreme Court of South Carolina adopted the panel report and increased the sanction to a public reprimand. Primus appealed. The us Supreme court reversed. The crucial distinction between the two cases is to be found in the nature of the ACLU, whose sponsorhip is not motivated by pursuit of pecuniary gain but rather by its widely recognised objective of vindicating civil liberties. That circumstance brings the issue under the decision in NAACP v. Button [371 us 415 (1963)] which determined that it is unconstitutional for a state (in the event, Virginia) to prohibit, under its quite legitimate powers to regulate

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