Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978)

APPEAL FROM THE SUPREME COURT OF OHIO

Syllabus

Appellant, an Ohio lawyer, contacted the parents of one of the drivers injured in an automobile accident after hearing about the accident from another source, and learned that the 18-year-old daughter was hospitalized. He then approached the daughter at the hospital and offered to represent her. After another visit with her parents, he again visited the accident victim in her hospital room, where she signed a contingent fee agreement. In the meantime, appellant approached the driver’s 18-year-old female passenger -- who also had been injured -- at her home on the day she was released from the hospital; she agreed orally to a contingent fee arrangement. Eventually, both young women discharged appellant as their lawyer, but he succeeded in obtaining a share of the driver’s insurance recovery in settlement of his lawsuit against her for breach of contract. As a result of complaints filed against appellant by the two young women with a bar grievance committee, appellee filed a formal complaint with the disciplinary Board of the Ohio Supreme Court. The Board found that appellant solicited clients in violation of certain Disciplinary Rules, and rejected appellant’s defense that his conduct was protected by the First and Fourteenth Amendments. The Ohio Supreme Court adopted the Board’s findings, and increased the Board’s recommended sanction of a public reprimand to indefinite suspension.

Held: The Bar, acting with state authorization, constitutionally may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent, and thus the application of the Disciplinary Rules in question to appellant does not offend the Constitution. Bates v. State Bar of Arizona, 433 U.S. 350, distinguished. Pp. 454-468.

(a) A lawyer’s solicitation of business through direct, in-person communication with the prospective clients has long been viewed as inconsistent with the profession’s ideal of the attorney-client relationship and as posing a significant potential for harm to the prospective client. P. 454.

(b) The State does not lose its power to regulate commercial activity deemed harmful to the public simply because speech is a component of that activity. Pp. 455-456.

(c) A lawyer’s procurement of remunerative employment is only marginally affected with First Amendment concerns. While entitled to some constitutional protection, appellant’s conduct is subject to regulation in furtherance of important state interests. Pp. 457-459.

(d) In addition to its general interest in protecting consumers and regulating commercial transactions, the State bears a special responsibility for maintaining standards among members of the licensed professions, especially members of the Bar. Protection of the public from those aspects of solicitation that involve fraud, undue influence, intimidation, overreaching, and other forms of "vexatious conduct" is a legitimate and important state interest. Pp. 460-462.

(e) Because the State’s interest is in averting harm by prohibiting solicitation in circumstances where it is likely to occur, the absence of explicit proof or findings of harm or injury to the person solicited is immaterial. The application of the Disciplinary Rules to appellant, who solicited employment for pecuniary gain under circumstances likely to result in the adverse consequences the State seeks to avert, does not offend the Constitution. Pp. 462-468.

48 Ohio St.2d 217, 357 N.E.2d 1097, affirmed.

POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, and STEVENS, JJ., joined. MARSHALL, J., filed an opinion concurring in part and concurring in the judgment, post, p. 468. REHNQUIST, J., filed a statement concurring in the judgment, post, p. 477. BRENNAN, J., took no part in the consideration or decision of the case.