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In re Primus

Supreme Court of the United States · 1978 · Constitutional Law

Constitutional LawFirst AmendmentAttorney RegulationFreedom of AssociationFirst AmendmentFourteenth Amendmentlawyer solicitationnonprofit litigation

Facts

Edna Smith Primus, a South Carolina lawyer associated with the ACLU, met with women in Aiken County after reports that pregnant mothers on public assistance were being sterilized or threatened with sterilization as a condition of Medicaid benefits. At that meeting she advised those present, including Mary Etta Williams, of their legal rights and suggested the possibility of a lawsuit. Later, after learning that the ACLU was willing to provide representation, Primus sent Williams a letter stating that the ACLU would like to file a lawsuit on her behalf, offering to explain the matter, and asking whether she was interested. South Carolina disciplined Primus under its solicitation rules, based on the view that she solicited a client on behalf of the ACLU.

Issue

May a State, consistent with the First and Fourteenth Amendments, discipline a lawyer who, on behalf of a nonprofit organization pursuing political and ideological objectives through litigation, advises a lay person of her legal rights and then sends a letter offering free legal assistance? More specifically, may South Carolina apply its anti-solicitation disciplinary rules to Primus's letter on behalf of the ACLU?

Rule

When a lawyer's solicitation is undertaken as part of nonprofit associational activity to advance political and ideological goals through litigation, the solicitation falls within protected expression and association under the First and Fourteenth Amendments. In that context, the State must satisfy exacting scrutiny by showing a compelling subordinating interest and means closely drawn to avoid unnecessary abridgment of associational freedoms, and the lawyer may not be disciplined absent actual misconduct of the sort the State may constitutionally proscribe.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Leah Moreno, a licensed attorney in New Mexico, volunteers without pay for Liberty Forum, a nonprofit group in Albuquerque that uses litigation, lobbying, and public education to advance voting-rights positions. After speaking at a community meeting in Santa Fe about a proposed challenge to a county election practice, Leah mails Rosa Vega a letter offering free representation through Liberty Forum if Rosa wishes to participate.

If New Mexico publicly reprimands Leah under a broad anti-solicitation rule solely because she mailed the letter offering free representation, which is the strongest constitutional argument against the reprimand?

Explanation. When a lawyer solicits as part of nonprofit associational activity to advance political or ideological goals through litigation, the conduct falls within protected expression and association. Under the majority opinion, the State must show a compelling subordinating interest and use means closely drawn to avoid unnecessary abridgment of associational freedom. A broad anti-solicitation rule cannot constitutionally be applied without proof of actual misconduct such as undue influence, overreaching, misrepresentation, invasion of privacy, serious conflict, or injurious lay interference.