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Ohralik v. Ohio State Bar Association

Supreme Court of the United States · 1978 · Constitutional Law

Constitutional LawFirst AmendmentCommercial SpeechAttorney RegulationProfessional Responsibilitycommercial speechin-person solicitationattorney discipline

Facts

Appellant, an Ohio lawyer, learned of an automobile accident and initiated contact with Carol McClintock's family, then visited Carol in the hospital while she lay in traction and sought to have her retain him. He later returned and obtained a contingent-fee contract for one-third of her recovery. He also obtained Wanda Lou Holbert's address, visited her uninvited shortly after her release from the hospital, informed her of a possible uninsured-motorist recovery, offered to represent her for a contingent fee, and recorded much of the encounter with a concealed tape recorder. When Wanda's mother and later Wanda herself rejected his representation, appellant insisted there was a binding agreement and continued to hold himself out to the insurance company as her lawyer.

Issue

Does the First and Fourteenth Amendments prohibit a State from disciplining a lawyer for in-person solicitation of accident victims for pecuniary gain when the solicitation occurs under circumstances likely to create dangers such as overreaching, undue influence, and invasion of privacy? More specifically, may the State apply disciplinary rules prophylactically without proving actual injury to the solicited person?

Rule

In-person solicitation of professional employment by a lawyer for pecuniary gain is commercial activity only marginally affected with First Amendment concerns and is subject to regulation in furtherance of important state interests. A State may constitutionally enforce prophylactic disciplinary rules against such solicitation when it occurs under circumstances likely to result in harms such as overreaching, undue influence, intrusive invasion of privacy, or other misconduct, without requiring proof of actual harm in the particular case.

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

After hearing on a police scanner about a serious warehouse accident in Toledo, lawyer Dana Mercer goes uninvited to the victim's home that evening. The victim is groggy from pain medication, and Dana urges him to sign a contingent-fee agreement immediately, saying there is "no downside" because the fee will come only from any recovery.

If Ohio disciplines Dana for this in-person solicitation, which is the strongest constitutional argument for upholding the discipline?

Explanation. The majority held that a State may constitutionally discipline a lawyer for in-person solicitation for pecuniary gain when the circumstances are likely to pose dangers such as overreaching, undue influence, intrusion, or uninformed decisionmaking. Because the rule is prophylactic, the State need not prove actual fraud or actual injury in the particular case. The speech retains some First Amendment protection, but at a reduced level because it is part of a commercial transaction within the State's sphere of professional regulation.