The Gazette 1982

g a z e t t e

april 1982

But determining the appropriate level of judicial scrutiny is more art than science; more politics than law, and men of good will and good sense can differ. Even American Supreme Court Justices can differ radically on this question. In so far as it is ever meaningful to catch a man within a label, Mr Justice Marshall is a 'liberal' and Mr Justice Rehnquist is not. They differ; and their difference is instructive. Thus, Rehnquist aptly observes, 'the Court tells its own tale of two lawyers: one tale ends happily for the lawyer and one does not'. Rehnquist, dissenting, takes the view that both tales should end unhappily. 'We can,' he observes, implying that we ought not to, 'develop a jurisprudence of epithets and s l ogans . .. in which "ambulance chasers" suffer one fate and "civil liberties lawyers" another.' This would be wrong, Rehnquist believes, because there is no principled difference between the two cases and it is only by way o f ' . . . the latitude of novelists in deciding between happy and unhappy endings for the heroes and villains of their tales' that the court can reach different judgments in the two cases. Rehnquist accuses the court of missing the 'common thread' between the two cases. He interprets the Primus decision as stating 'that South Carolina may not constitutionally discipline a member of its Bar for badgering a lay citizen to take part in "collective activity" which she never desired to join' (author's italics). But (as the italicised words indicate) this is a mis-description of the facts of Primus. He treats as 'entirely reasonable' a rule to the effect that 'a lawyer employed by the ACLU . . . may never give unsolicited advice to a lay person that he or she retain the organisation's free services' (author's italics). But Primus was not employed by ACLU and an absolute prohibition is simply inconsistent with the style of American Constitutional adjudication. Rehnquist 'cannot share the Court's confidence that the danger of such [harmful] consequences [ie, drawing an unsophisticated layman into litigation contrary to his own best interests] is minimized simply because a lawyer proceeds from political conviction rather than for pecuniary gain'. Alas, your author 'cannot share' Rehnquist's inability to see a distinction between Ohralik and Primus and, whereas past 'fan' mail suggests that at least one reader of this Journal will side with Rehnquist, your author follows Mr Justice Marshall and the court in distinguishing the two cases. Marshall stresses the extremely 'disparate factual settings'. Ohralik provides 'classic example of "ambulance chasing", fraught with obvious potential for misrepresentation and overreaching'. He notes that the girls were very young and that Ohralik was 'an experienced lawyer in practice for over 25 years'. He continues, 'Any lawyer of ordinary prudence should have carefully considered whether the person was in an appropriate condition to make a decision about legal counsel.' Marshall writes of Ohralik having 'foisted' himself, in 'gross disregard' of the privacy of Carol McClintock, Mr and Mrs McClintock and Wanda Lou Holbert. He is particularly caustic about Ohralik's 'covertly recording' conversations — 'completely in- consistent with an attorney's fiduciary obligation fairly and fully to disclose to clients his activities affecting their interests'. And Ohlarik's 'unethical conduct was further

compounded by his pursuing Wanda Lou Holbert, when her interests were clearly in potential conflict with those of his prior-related client, Carol McClintock'. All in all, Marshall concludes, it is not so much soliciting business for himself that makes Ohralik's conduct objectionable, 'but rather the circumstances in which he performed that solicitation and the means by which he accomplished it'. For Marshall, Primus is a fish from an entirely different kettle. That case reveals 'a "solicitation" of employment in accordance with the highest standards of the legal profession'. He writes of the obligation of all lawyers to help the disadvantaged. Lawyers ought not to be discouraged from such activities when already, he believes, too many 'find time to work only for those clients who can pay fees'. Marshall, therefore, is wholly supportive of the proposition that 'a state may not, under the guise of prohibiting professional misconduct, ignore constitutional rights' (NAACP v. Button 371 us 415,439 (1963)) and insists, as against Rehnquist, that the two cases 'deal only with situations at opposite poles of the problem of attorney solicitation'. And the court distinguishes in like manner. In so doing, the court flirts dangerously adjacent to the old distinction between ideal 'political' and crude 'commercial' speech, discredited in Virginia Pharmacy, in order to sustain the proposition that First Amendment protection of speech does not exclude all forms of regulation, especially where important state interests are involved. First Amendment protection is not absolute and a state does not lose power to regulate commercial activity deemed harmful to the public simply because speech is a component of that activity. The recognition that First Amendment protection is not absolute presents the question of when the presumption in favour of free speech is to be upheld and when departed from. In the two cases cited, the court seeks to draw a distinction between permitted forms of communication and illegitimate activities. It seeks to refine Bates by drawing a line between constitutionally permitted communication and constitutionally prohibited solicitation. That distinction, fine as it is, shares the basic philosophy of the Law Society of Scotland's new rules. In both jurisdictions, lawyer advertising is permitted, provided one can point to some greater social good or public interest transcending the narrow personal benefit or private profit of the individual lawyer. And differences between the two jurisdictions do not so much reflect a difference in basic philosophy as a difference in the conception of the social good or public interest. Bates decided that American lawyers may advertise the price of routine services in the popular press, on the ground that the free flow of such vital information contributes significantly to the common good. As Mr Justice Blackman put it in Bates, ' . . .the consumer's concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue. Moreover, significant societal interests are served by such speech. Advertising, though entirely commercial, may often carry information of import to significant issues of the day'. And the question remains as to why the solicitor in Scotland ought to be prohibited from routinely advertising his expertise and the normal costs of his services. Much of the opposition seems to flow from a perverse readiness to

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