OHRALIK v. OHIO STATE BAR ASSN.
Legal provision: Amendment 1: Speech, Press, and Assembly
Argument of Eugene Gressman
Chief Justice Warren E. Burger: We will hear argument first this morning in number 1650, Ohralik against the Ohio State Bar Association.
Mr. Gressman you may proceed whenever you are ready.
Mr. Eugene Gressman: Mr. Chief Justice and may it please the Court.
This case is here on appeal from Supreme Court of Ohio, which ordered that the appellant Albert Ohralik be suspended indefinitely from the practice of the law in Ohio on the ground that he did solicit and obtain retainer agreements from two accident victims in violation of two sections of Disciplinary Code of Professional Responsibility, numbers 103 (A) and 104 (A) under canon 2 of the Code.
Now it is important to understanding the sole and the critical issue now before this Court.
To understand that there was a single unitary charge and finding with respect to the activities of this appellant.
The charge was that he did solicit and did obtain agreements from these two individuals.
The finding was that he did solicit and did obtain agreements from these two individuals.
This fall squarely without more within the ambient of these two disciplinary rules, which in affect prohibit a lawyer from recommending his own employment or accepting employment from a layman, who has not sought his advise regarding the employment of an attorney.
So that based upon that simple determination, the Federal constitutional issue was premised and raised in the court below and it has being accepted for review by this Court to it.
Does the First Amendment entitle a lawyer to recommend his own employment or to accept employment in the context, the simple context of giving unsolicited advice, respecting the need for counsel and respecting the desirability of taking legal action, which the perspective client may be ignored.
Justice Byron R. White: Well, does the charge require proof of advice with respect to need for counsel?
Mr. Eugene Gressman: That is the way in which the Disciplinary Rule reads.
Justice Byron R. White: So that just is not the business of soliciting business, it also says you should have a lawyer.
Mr. Eugene Gressman: That is true that is essentially -- it is combination I would suspect of giving legal advice about the need.
Justice Byron R. White: The need and then recommending himself.
Mr. Eugene Gressman: And recommending himself, and in the context of course, of a situation where that person does not come to the lawyer seeking such advice and recommendation.
Now in this limited context, I think, our first point has to be an understanding, of just what are the basic elements of this kind of solicitation of legal business.
As I view it, reading the text of these disciplinary rules, the elements are first a truthful conveying of information concerning the person's possible legal rights and conveying of truthful information concerning his need for counsel.
Second element that the lawyer speaks with a commercial or profit seeking element in mind, he is soliciting business for the sake of his personal pecuniary gain, as most lawyers do practice law for pecuniary gain.
Thirdly, like many commercial solicitations, this one may be and is designed to be the most persuasive in nature.
And fourth, the element that is already been mentioned that ordinarily according to the rule, this kind of conveying of information and solicitation is in the context of proffering unsolicited legal advice and conveying the need for counsel, competent counsel who represent the individual in pursuit of what may be his legal rights.
Chief Justice Warren E. Burger: Do you think counsel it would be fundamentally any different if a physician observing some person stranger to him thought he detected symptoms of diabetes or any other disease superficial symptoms and then solicited the person to come to his office for an examination.
Mr. Eugene Gressman: An examination of his -- you mean speaking of the doctor now.
Well, I am not sure that doctors have ever aggressively sought the medical practice in that manner and all the -- basically that would be essentially the same situation, I would agree.
Unknown Speaker: Mr. Gressman, I think there are those who do.
Mr. Eugene Gressman: Well if they do, I would say that it is essentially the same situation.
I suppose there are many doctors who may, in the company of their friends, notice a medical problem that might encourage him to do exactly what the Chief Justice suggest that he come in for an examination.
That may be done informally or otherwise.
Chief Justice Warren E. Burger: Well if this is done to some extent in various areas, it would be at least indicated by the fact that hospitals have committees of surgeons to monitor surgery to see whether unnecessary surgery is being performed, do they not?
Mr. Eugene Gressman: That is true and at the same time we have many programs that solicit individuals to have medical examinations to check their heart, to check possible cancer symptoms and what have you.
Chief Justice Warren E. Burger: But do not by a person who is going to profit by it.
Mr. Eugene Gressman: They will --
Chief Justice Warren E. Burger: They are referring to the life insurance companies who have institutional ads suggesting --
Mr. Eugene Gressman: Yes, I suppose in the medical field you get more of that in the organizational areas and that individuals are -- doctors are not as many in number compared to the types of organizations that would, you might say, solicit medical treatment by unsuspecting victims of some defect.
Now, in a real sense, therefore, it seems to me that the action, the context in which this commercialized solicitation does occur to with that freely giving a legal advice and recommendation of attorneys is really in the highest tradition of the profession.
This may not be an ideal way of obtaining a legal business but then and certainly is not the only way, but the freedom the circumstance of discussing, conveying legal information and advice to those most in need of is a situation that I think warrants commendation rather than condemnation, and leads to my next point, as to what it is about this kind of solicitation that has encouraged the wrath and the prohibition by the organized bar of this solicitation.
Justice John Paul Stevens: Mr. Gressman, let me interrupt you, your reference to the highest tradition of profession makes me pause just a minute.
Would it be in the highest tradition of the profession for prosecutor to give legal to criminal defendant freely?
Mr. Eugene Gressman: I would say in given situations that might be true if --
Justice John Paul Stevens: Do you see some problem about a prosecutor acting as counsel for the man he is prosecuting?
Mr. Eugene Gressman: Well, if he is doing it in terms of the precise case he is prosecuting, that is one thing.
I was suggesting normally that he might give an individual advice to him about a collateral or unrelated legal problem which he is not directly involved in.
Justice John Paul Stevens: But I suppose the thing you trying to avoid is the counsel’s interest.
Mr. Eugene Gressman: That is right.
That is another problem.
Justice John Paul Stevens: So don’t you see a conflict of interest between an unemployed lawyer volunteering a free legal advice about the merits of the case to which -- purportedly in the interest of the client, when he is also acting as own self interest to try an persuade the client to employ him?
Mr. Eugene Gressman: Well, I do not believe that is the ordinary sense in which we use the term conflict of interest or in which the Disciplinary Code be used as a concept.
Justice John Paul Stevens: But isn’t that the underlying reason why the lawyer should not mix up his own self interest by giving advice when he is supposed to be disinterested.
Mr. Eugene Gressman: Well, I think if you accept that doctrine Mr. Justice Stevens that would mean that no lawyer should take a case where he has discussed with the client who has come to you, the advice ability of instituting legal suit of some sort because inevitably if this solicitation or rather this advice is sought in the first instance by the client himself, the lawyer may inevitably have his own self interest and may give advice that will promote his own interest in obtaining that case.
So I think that is an inevitable situation when you have the lawyers talking with the clients.
Justice William H. Rehnquist: Wouldn’t the consultation itself and Mr. Justice Stevens’ hypothetical be paid for, so that the lawyer is not having to seek gain only by further employment?
Mr. Eugene Gressman: He may be paying for that initial consultation or he may not.
Justice William H. Rehnquist: But isn’t that the custom of the profession, you do not just walk into a lawyer’s office and say I have got a problem and after you tell me what my problem is and what I should do about it maybe I will decide to retain.
Justice Byron R. White: But it is not that does not reach the canons of ethics if he does not charge, does it?M
Mr. Eugene Gressman: No, I frankly have given that type of free advice many times myself to individuals who come to me with a problem, should I take my case Supreme Court, and without charging them anything.
I will give my estimation of that so it is not -- it could a consultation fee or it could not.
Chief Justice Warren E. Burger: But isn’t the fundamental difference in these hypotheticals the manner in which the relationship began, in the one case the client has gone to the lawyer and solicit his advice and the other lawyer has gone to the client and volunteered.
Mr. Eugene Gressman: That is essentially the difference Your Honor, yes, and I think that what happens after that is likely to be fairly identical in nature.
Justice Thurgood Marshall: Is there any prohibition against the insurance company lawyers talking to him?
I always thought the answer was that they did not chase that, and you will answer that waiting through the ---
Mr. Eugene Gressman: Well, many of them do it, that is right [Laughter].
That is one of the ironies of this situation Your Honor.
Justice Thurgood Marshall: And there is nothing in the Ohio rules that cover that at all.
Mr. Eugene Gressman: They would say that an insurance lawyer may not go into the hospital room and seek to settle a case with a victim there.
Now it seems to me that the evil or what he has got the cause for this, the rationale for this disciplinary prohibition of solicitation is not in terms of its communicative aspects.
They are not really objecting to this lawyer conveying to the prospective client, advice about his legal rights nor are they really objecting to soliciting his own employment or conveying information about his own availability as counsel in the situation.
Certainly they are not objecting to a system, imperfect though it maybe, by which legal representation is accorded an individual who might not otherwise either know of his legal rights or have counsel available to him.
Now, we must turn rather to what this Court turned to in the Bates decision last term about the historical basis of the rules against advertising by attorneys, which not strangely enough and have the same historical source as the ban on solicitation.
And that is that the ban on solicitation like the ban on advertising originated in the inns of Court of England as a matter of etiquette that the barristers simply as gentlemen of the Bar do not seek to compete with each other; they do not seek to solicit, to advertise, to act as ordinary tradesmen act.
Justice Potter Stewart: Because barristers in England -- maybe it has not always been so, but as I understand it, do not communicate with clients at all.
Mr. Eugene Gressman: That is true, but they still have the rules against advertising and soliciting which have been the source from which we have inherited the concepts against advertising.
Justice Potter Stewart: Entirely different setting if --
Mr. Eugene Gressman: That is true.
Let me have what you would like to call a --
Justice Potter Stewart: Here there is a relationship between a lawyer and a client and a barrister in England does not have any relationship --
Mr. Eugene Gressman: True.
Justice Potter Stewart: -- directly between himself and the client, but, only with a solicitor.
Mr. Eugene Gressman: But he has very rigid rule of etiquette that would prohibit him even from attempting to contact a client.
Justice Potter Stewart: Well, they just never do.
Mr. Eugene Gressman: That is right.
But, what is significant about this as it was in the Bates case is that this was developed in England, as a matter of etiquette and to this very day the ban on solicitation with respect to barristers in England -- and I have cited this pamphlet in my brief -- is contained in a pamphlet put out by the inner temple addressed to the barristers entitled conduct and etiquette at the Bar.
Now, in other words, this was a basic matter of good manners and etiquette as to how a lawyer should conduct himself vis-à-vis other attorneys.
Chief Justice Warren E. Burger: Do not the same rules of solicitation apply to solicitors in England?
Mr. Eugene Gressman: I assume they do and they probably inherited this notion too from the original rules of etiquette.
Chief Justice Warren E. Burger: They have inherited but they have no connection with the Inns of the Court.
Mr. Eugene Gressman: No, but I think, the same etiquette, the same manners in this sense have been adopted by the solicitors as well.
And Henry Drinker’s great volume on Legal Ethics, the prime authority in this field has noted this in no uncertain terms that these rules that we now have in the Code of Professional Responsibility are largely derived from, inherited from what can only be described and what is described by this Court last term in Bates as matters of etiquette.
Justice Byron R. White: Well, I do not know why we have to say, have to deny what the State claims that either bases or its rule.
They are talking about etiquette; they claimed that there are some substantial answer by --
Mr. Eugene Gressman: Yes.
Justice Byron R. White: But you do not deny those, do you?
You just say that they are insufficient.
Mr. Eugene Gressman: That is true that I am saying that, that I think you have to have an understanding of what the motivation or the origin behind this rule.
Justice Byron R. White: Maybe the origin but the State does not -- it does not say now that there is any matter of etiquette it is just a --
Mr. Eugene Gressman: Well, basically they do when they are saying that this solicitation like they said about advertising is contrary to the high ideals of the profession.
What high ideals other than, this is not the way gentleman of the bar should offer.
Justice Byron R. White: Well, that is not a matter of etiquette when the State says this rule is, one of the things this rule is designed to do is prevent overreaching and under influence by -- now that is not etiquette.
Mr. Eugene Gressman: That is true; that is not -- those are later day justifications.
Justice Byron R. White: Yeah, but real.
Mr. Eugene Gressman: Right.
Justice Byron R. White: I mean but they are real claims.
Mr. Eugene Gressman: Right.
Now I might say --
Chief Justice Warren E. Burger: Do you think a lawyer who is trained as an advocate or presumable trained as an advocate dealing with a layperson in the hospital or in sick bed or whatever is engaged in an arm’s length transaction where the too far this person being solicited than the person doing the soliciting or on the same parity?
Mr. Eugene Gressman: No I do not think in the first place any lawyer is on the same parity with a layman.
Chief Justice Warren E. Burger: It is much more skill that persuading, isn’t it?
Mr. Eugene Gressman: Of course, he is supposed to be and that is what he is in the business of practicing law among other reasons, but that does not mean that he should not promote those qualities in appropriate situations where he does not overreach himself or he does not incur any of the attended evils that may arise out of taking advantage of an individual who is not in, say, full control of all of his faculties.
That is another problem.
Chief Justice Warren E. Burger: How do we know he is not overreaching himself?
Mr. Eugene Gressman: Because there are many instances where solicitation occurs and is permitted where there is no element of overreaching.
That is not an inherent part of these disciplinary prohibitions that we are dealing with here.
Now, by the very terms, they carve out an exception for soliciting your close friends, your relatives, your former clients and those whom you reasonably may think is a client.
Now this is --
Justice John Paul Stevens: Mr. Gressman that is not quite right, is it?
The exception is from 104 (A) not 103.
There is no exception at 103.
Mr. Eugene Gressman: That is true.
Justice John Paul Stevens: With the distinction between the two canons in mind the former prohibiting speech and the second prohibiting acceptance of the employment which one might describe as conduct rather than speech.
Assume we were to agree with you on the speech but not agree with you as to the acceptance of the employment after having given unsolicited advice.
What should we do with the case?
Assume we thought you are right about canon 103 but wrong about canon 104, what would be the proper disposition of the case?
Mr. Eugene Gressman: Well it is impossible to say --
Justice John Paul Stevens: In other words you could say the speech is protected?
Mr. Eugene Gressman: Speech is protected.
Justice John Paul Stevens: But it is proper to prohibit the conduct of accepting employment after giving an unsolicited advice.
Mr. Eugene Gressman: I am not sure I would designate accepting employment as a matter of conduct, I think that is an essential attribute or result of the oral communications between the two individuals.
Justice John Paul Stevens: That is clearly speech than the other.
Mr. Eugene Gressman: I think, well perhaps, but I would not want to concede that that is such conduct that it need be regulated to the detriment of what I concede to be First Amendment freedom.
Justice John Paul Stevens: Well, supposing we disagree with you, just for a moment and we thought the former was protected speech, the later was unprotected conduct, what in your view would be the proper way to dispose at the litigation?
Mr. Eugene Gressman: Well it -- the Ohio Court did not make a distinction in this case between the application of these two rules so we do not know what they meant to apply to which situation or not.
Now I would say though that if you were to agree that there was protected speech here I think the same result would have to follow under 104 that the result of that speech, the formation of a retainer agreement was also a protected activity because I am not sure that in any of the decided cases in this Court respecting solicitation that they have made that kind of a distinction that they have dealt with whole unitary action known as solicitation that is the use of speech in communication to advice and there upon obtain retainer agreement.
So I think there can be no constitutional distinction between those two elements.
Now that leads me directly to the First Amendment implications of these acts of solicitation as I have described them.
There are two lines of cases that I think justify the conclusion that this is protected activity.
The first line of cases of course starts with NAACP versus Button, and indeed this Court held in Button that solicitation is not wholly outside the area of freedom protected by the First Amendment, and that First Amendment cannot be ignored under the guys (ph) of prohibiting professional misconduct.
Now that is almost the complete answer to this constitutional question posed to you in this case.
There has to be, under that formulation of constitutional doctrine in the Button case, there has to be an area of freedom to solicit.
That is protected by the First Amendment.
Chief Justice Warren E. Burger: Then your submission would necessarily apply to every profession, would it not?
We could not grant this freedom of speech to lawyers and deny it to doctors and dentists And --
Mr. Eugene Gressman: I think those are the next cases perhaps that you have already granted that kind of freedom, say, to the pharmacist in the Virginia Pharmacy case.
You have granted this kind of freedom to the --
Chief Justice Warren E. Burger: That was the face to face solicitation and not was advertising.
Mr. Eugene Gressman: Advertising, but you had face to face solicitation in the cases subsequent to Button involving various unions, The United Mine Workers, United Transportation Workers, The Brotherhood of Railroad Trainmen cases.
Chief Justice Warren E. Burger: But limited to the members of the organization.
Mr. Eugene Gressman: That is true, but there was face to face solicitation by union agents.
Justice William H. Rehnquist: Weren’t those freedom of association cases?
Mr. Eugene Gressman: Of course they were Your Honor but they also said, involved the actions of individual attorneys who were in agreement or had contracts with the union to accept the results of this solicitation.
Justice William H. Rehnquist: But you do not claim your client is relying on only the freedom of association counsel?
Mr. Eugene Gressman: Oh no, not at all.
I recognize that there is -- those were organizational cases, but I say there is no provision or concept within the First Amendment that would give an organization greater First Amendment right to solicit than an individual attorney.
Justice William H. Rehnquist: Well the dissenters in those cases thought so too, I think.
Mr. Eugene Gressman: Well, in one of these cases, I think it was the United Mine Workers case, and the Court was dealing in all of these case both with the organization and with the individual attorneys, some of whom had been charged, I assume, with the violations of the Professional Code of Ethics, but in the Brotherhood of Railroad Trainmen at 337 U.S. at Page 8, the Court made this rather significant comment - and this was a unanimous opinion as I recall, Mr. Justice Black writing that “Lawyers accepting employment is where retainer agreements that had been solicited, accepting employment under this constitutionally protected plan, have a like protection which the state cannot abridge.”
Now it seems to me that this Court was there indicating that there was the area of First Amendment freedom to solicit that the State cannot protect.
Now I would be relace if I did not I mention of course, the other line of cases, that lead to the conclusion that this is indeed a protected area within the First Amendment, and those are cases, of course, primarily are the Virginia Pharmacy case and the Bates decision.
And what is significant about these notions as Mr. Justice White indicated, the attempted justifications for the ban on solicitation all relate to projected fear that there is something inherently going to and inescapably going to happen when the lawyer confronts a prospective client that, that lawyer can not be trusted to do anything other than to misrepresent.
Justice Lewis F. Powell: May I ask you a question?
Mr. Eugene Gressman: Yes.
Justice Lewis F. Powell: I think this record indicates the tape recorder that were used by your client without divulging to these two young ladies that they were being used.
Does that suggest you the danger of overreaching in this sort of activity?
Mr. Eugene Gressman: That is of course not the subject of any determination or finding or charge.
That was the basis on which this case arose.
Justice Lewis F. Powell: You would concede a state interest in protecting unsophisticated people overreaching by members of Bar, I assume.
Mr. Eugene Gressman: I am not, for one minute, suggesting that reasonably drawn rules might be drafted controlling the time, place and manner in which solicitations may be made.
Chief Justice Warren E. Burger: Could that include a requirement that the client have counseled for any agreements of the employment resigned, separate independent counsel?
Mr. Eugene Gressman: That could well be.
I would suggest that you might require that the contract itself be filed in court or with the Bar agreements.
Chief Justice Warren E. Burger: Something like importing the Miranda concept into the civil employment.
Mr. Eugene Gressman: That is right that there would be rigid controls.
Now I understand strong arguments have made that it is impossible to control or supervise oral solicitations that may be a far removed from any.
Well that is always been true.
We have had this ban on solicitations; we have had the ban on advertising.
We never know about it, we never enforce it until a complaint, until some evil ensues that makes it evident and makes it possible therefore to enforce and so in this case.
The prime concept, an idea, I want to leave with this Court is that it is constitutionally insufficient with respect to restricting the First Amendment to Freedom recognized in the Button case to say, well, this is so likely to produce this representation, contrary interests, deceived, fraud or whatever else may be conceived of.
I do not believe that First Amendment can be swept aside with articulated but unfounded fears in the abstract situation, the abstract constitutional situation that we are speaking of.
Justice Byron R. White: Do you think a State can prevent a lawyer from financing litigation?
Mr. Eugene Gressman: I think with properly drawn rules, yes.
Justice Byron R. White: Well, I know but that is purely prophylactic.
Why should not that have to proof actual fraud or misrepresentation or something?
Mr. Eugene Gressman: Well, I am not sure that those situations may have developed, those rules may have developed out of --
Justice Byron R. White: That is not etiquette, is it?
Mr. Eugene Gressman: No Your Honor, that may be the difference, one of the major differences that those some of the -- may every other aspect of the Professional Code relates to what you might call "malum in se", something that is inherently wrong, something that inherently justifies the imposition of the State’s interest.
Now I suggest that State’s interest, however, cannot be grounded on speculation and fear, because we have had adequate rules and adequate, and if need be we can add more rules to take care of each of these anticipated fears, that can arise from the solicitation concept.
Thank you Your Honor.
Chief Justice Warren E. Burger: Very well Mr. Gressman.
Argument of John R. Welch
Mr. John R. Welch: Mr. Chief justice and may it please the Court.
I would like first to address a question of the matter of the proceedings in the court below and in the Supreme Court of Ohio.
There are some misimpressions that may began from what it said in the briefs.
First, the Supreme Court of Ohio has sole and exclusive jurisdiction as to what are the facts in a disciplinary matter and what the discipline should be.
When a complaint is filed against an attorney such as Mr. Ohralik, it is heard by a Board of Commissioners, a panel of three of the Board of Commissioners.
And they made findings of fact and sent it on to the full Board of Commissioners who themselves review the record and make findings of fact and recommendations to the Supreme Court.
After that proceeding is finished that they lose jurisdiction.
What they find as fact and what they recommend has no varying whatsoever from thereon.
It is for the guidance of the Supreme Court of Ohio, of course, but the Supreme Court of Ohio, and I repeat has, sole and exclusive jurisdiction as to what the findings of fact are and as to what the discipline should be.
So where it is referred to in the brief that the - in appellant's brief - that the Board of Commissioners made certain findings with respect to the relinquishment of the contracts.
They found that that was not unethical for appellant to claim to his contracts; there was no finding on that matter by the Supreme Court of Ohio.
Justice Potter Stewart: How are the Commissioners appointed?
Mr. John R. Welch: They are appointed by the court, the Supreme Court of Ohio, and there are 17 districts, and one member is appointed from each district and they rotate the court as to who will appoint the next member, one by one.
Justice Potter Stewart: This, the appellee and your client, is in this case is the Ohio State Bar association which was what the charging party?
Mr. John R. Welch: The Ohio State Bar Association was the charging party.
We brought the charges against the Mr. Ohralik and I think it is worthy of repeating that we charged him within hospital solicitation.
It is set forth in the charge of the young one woman, and the other young woman was charged with solicit -- he was charged with soliciting the other young woman in her home.
And the Supreme Court of Ohio found as fact that those solicitations did occur where it was alleged and they found other facts in addition to those.
Justice Potter Stewart: But the Commissioners are agents and officers of the Supreme Court of Ohio rather than of the Ohio state Bar Association.
Mr. John R. Welch: They are agents of the Supreme Court of Ohio, yes Your Honor and had no connection with the Ohio State Bar Association whatsoever.
Chief Justice Warren E. Burger: For both the conversations that is in the hospital and in the home tape recorded or just the one in the home?
Mr. John R. Welch: Just the one in the home of Wanda Lou Holbert was tape recorded, she was the second young women, but the other tape recording was made with the parents of Carol McClintock on the same day on which the appellant solicited Carol McClintock in the hospital.
The Supreme Court of Ohio did not refer to that tape recording at all.
It was submitted as evidence and the decision of the Court makes no mention of the second or the one with the parents of Carol McClintock.
It makes no mention whatsoever of that tape recording.
Appellee -- we would like to make it clear to the Court that in speaking to the due process matter that is alleged in the complaint that we in no way intended to transform the charges against the appellant in this Court, i.e. we do not intend to allege new charges, no question, but that he was disciplined in the court below for violation of the two disciplinary rules cited by the Court, and it was soliciting and obtaining agreements to represent the two young women.
However, the Court, as I have indicated, made findings of fact that are incorporated in their decision.
They do not operate in a vacuum.
The charges were made at the hospital -- the solicitation was made in the hospital and the Court has found.
Justice Thurgood Marshall: Mr. Welch is there any punishment for solicitation alone?
Mr. John R. Welch: In Ohio there is.
The General Assembly of Ohio has spoken for many years that solicitation by an attorney such as Mr. Ohralik is against public policy?
Justice Thurgood Marshall: Has any one been punished for solicitation alone?
Mr. John R. Welch: Not within my knowledge?
Justice Thurgood Marshall: So, the two are really tied together, aren't they?
Mr. John R. Welch: The two are really tied together.
Justice Thurgood Marshall: Yes?
Mr. John R. Welch: Yes.
The Ohio State Bar Association Your Honor, to answer that question, never makes a charge of criminal solicitation.
That rather brings disciplinary actions.
We do not, and as I said, intend to transform these charges against the appellant.
We have no intention whatsoever.
Chief Justice Warren E. Burger: If the soliciting lawyer had used as some of them traditionally have photostatic copies of checks and prior settlements they had made for other clients and perhaps testimonial letters from clients.
Would that under Ohio practice be the subject of the special finding or would that simply be regarded as evidence in support of the general finding?
Mr. John R. Welch: It would be my judgment on that, Mr. Chief justice that it would be incorporated in the general allegation that it would be evidence of how he solicited, the manner in what he did.
This is the same as in this case is indicated by the findings of the court below, they made a number of findings that would not be specifically charged in the complaint, but the evidence indicates that these things did occur such as a suit after against Carol McClintock after the solicitation had occurred.
The court makes a specific finding on that.
And it makes specific findings with respect to the fact that Wanda Lou Holbert discharged the appellant after she had time to reflect upon the matter overnight and had a talk with her mother about it.
That is after the solicitation so of course is our position and that is incorporated in the general charge although the charge is specific as to time and place.
In essence, appellant is arguing here, as I understand it and as I understand his brief, that there is need for some State regulation of a lawyer.
Nevertheless he says that the Ohio rules are overbroad and inhibit objectionable as well as unobjectionable conduct.
He also argues that appellant's conduct was unobjectionable, innocent, pure, benign perhaps other labels he puts on the conduct.
However, it is -- he also argues that there is no harm done to the clients in this case and that there is no stated compelling interest by the court below.
It is our position that the record plainly demonstrates that the appellant's conduct poses precisely the dangers that support the Ohio rules.
It is clear, we believe, we submit, that the purpose of the Disciplinary Rules DR2-103(A) and DR2-104(A) are to eliminate or at least to reduce, to the greatest extent possible, the injury to potential clients that is caused by solicitation.
In other words, the rules have, as a purpose, the protection of the public from the harm and the dangers of harm flow from commercial solicitation.
Furthermore, it is, as I have indicated, the public policy of Ohio's expressed through as General Assembly that commercial solicitation is prohibited.
Secondly, even if we -- if there are some conceivable situations that the rules challenged by appellant maybe deemed to be overbroad, the appellant should not be permitted to evade himself of the overbreadth doctrine as expressed in Bates to secure reversal of the judgment of the court below.
In Bates, this Court held that the justification for the overbreadth analysis applies weekly, if at all, in the ordinary commercial context and the client to apply it to professional advertising.
A context where the Court said it is not necessary to further its intended objective.
The Court said since advertising is linked to commercial well being, it seem unlikely that such speech is particularly susceptible to be in crushed by overbroad regulations, and since solicitation is similarly linked to commercial well being and is a practice that is no more deserving a First Amendment protection than commercial advertising.
We submit that the appellant should not be able to evade himself of the overbreadth doctrine.
Justice Potter Stewart: Mr. Welch if I may interrupt you, you spoke a few moments ago of the Ohio State Legislature and its policy.
Mr. John R. Welch: Yes.
Justice Potter Stewart: My understanding is, and you tell me if I am mistaken, that the Code of professional Responsibility in Ohio was promulgated by the Supreme Court of Ohio.
Mr. John R. Welch: Yes that is correct.
Justice Potter Stewart: Not by the Legislature.
Mr. John R. Welch: Not by the Legislature but by the Supreme Court of Ohio, the Constitution of Ohio, excuse me Your Honor.
The Constitution of Ohio mandates, it gives that responsibility for admissions and discipline to the Supreme Court of Ohio.
Justice Potter Stewart: The State Constitution explicitly confers that authority under Supreme Court, Ohio Supreme Court.
Mr. John R. Welch: Explicitly confirms that authority, yes Your Honor.
Justice Potter Stewart: Are there any State Statutes bearing on it?
Mr. John R. Welch: On the matter of solicitation?
Justice Potter Stewart: Either on the matter of authorizing the court to do it or substantively on the matter of solicitation.
Mr. John R. Welch: There are some Statutes that deal with other matters involving the court and may -- there is one involving judges Your Honor, yes sir, where the Legislature did pass laws asking the Supreme Court of Ohio to promulgate rules for inquiries about the competency and so forth of judges, and the Supreme Court of Ohio has promulgated separate rules covering that subject.
Justice Potter Stewart: But there are no state laws by that; I mean enacted by the State Legislature --
Mr. John R. Welch: Not effecting --
Justice Potter Stewart: -- bearing directly or effecting this case?
Mr. John R. Welch: There is yes Your Honor.
There are laws still on the book which the Court -- I believe it is 47 Chapter 47 Ohio Revise Code they are still on the books that were on the books before the Supreme Court of Ohio was given constitutional authority to control over admission and discipline and they have just remained on the books.
Justice Potter Stewart: Is it generally understood in Ohio that the Supreme Court's action have superseded those old statutes?
Mr. John R. Welch: Yes, yes I think they are merely in aid of that I think quite the Court expresses it now if the court wishes to consult them, but we never bring any charges based upon the statutes, it is strictly --
Justice Potter Stewart: Always the Code of Professional Responsibility.
Mr. John R. Welch: Always under the Code of Professional Responsibility.
Justice Potter Stewart: And when was it --
Mr. John R. Welch: It was promulgated October 5, 1970, and the rules, at here under consideration, were then promulgated.
Justice Potter Stewart: And they where--
Mr. John R. Welch: Became effective October 5.
Justice Potter Stewart: They were modeled on with some modifications on the roles proposed by the American Bar Association Committee?
Mr. John R. Welch: There are modeled on those.
Then there are other instances not pertinent here where we have the Ohio Code is not the same as the American Bar Association Code.
Justice Potter Stewart: But these are identical?
Mr. John R. Welch: These are identical with the American Bar Association rules, at least at the time when this occurred.
Chief Justice Warren E. Burger: When did the State of Ohio give rule making power, the Legislature or the Constitution to the Supreme Court, about 57 or 58?
Mr. John R. Welch: It is more recent than that Your Honor.
I would say that the Supreme Court, the Ohio Constitution was amended giving this power to the Supreme Court in the late 60’s, perhaps it is late as 68.
Justice Potter Stewart: That is Rules of Civil and Criminal Procedure?
Mr. John R. Welch: Yes, yes Your Honor, and the control over admissions and discipline of lawyers.
There is one other matter that is brought to the Court's attention which we do not apologize but we recognize that it is not a part of the rule, the record of this case and has to do with the finding of fact of the court below as to the testimony of the appellant in the proceedings in the court below, testimony of appellant that he would abandon his claim for compensation or for attorney fees against Wanda Lou Holbert.
He did so testify and the court below made a finding fact that he, the appellant testified to that effect.
That is not true.
Had it not been twice stated in the appellant's brief that is his jurisdiction of statement and in his main brief, that testimony of the appellant.
We would not have made any statement about it whatsoever, but it is important we think for the court to note in considering the First Amendment argument made here that he did, the appellant did sue Wanda Lou Holbert four days after he had testified that he would not sue her or he would abandon his claim against her, only two business days as matter of fact, the hearing concluded on Thursday and there was a Friday and the suit was filed the next Monday.
We think that candor on this matter should have been impelled the appellant to disclose in his briefs that this suit was filed.
Chief Justice Warren E. Burger: That was filed after the hearing on the disciplinary.
Mr. John R. Welch: It was filed after the hearing, the disciplinary hearing concluded.
Chief Justice Warren E. Burger: In the disciplinary hearing did he represent that he was going to forgo his compensation?
Mr. John R. Welch: He did, Mr. Chief Justice, yes he did.
Chief Justice Warren E. Burger: Was that testimony under oath or is that?
Mr. John R. Welch: Under oath.
Justice John Paul Stevens: Mr. Welch, that statement I guess is there is a public record of the suit being filed.
Mr. John R. Welch: There is, there is.
Justice John Paul Stevens: Does the public show that he appeared pro se or did someone else represent him?
Mr. John R. Welch: He was represented --
Justice John Paul Stevens: It is right, but is it conceivable that some lawyer went ahead and filed the suit without being aware of the testimony, do we know?
Had it been prepared in advance or there is some failure of communication?
Mr. John R. Welch: We do not have that knowledge.
I would say that it is my recollection that he did have an attorney.
Justice John Paul Stevens: Does the record tell us whether that suit was happened other than the filing of the complaint?
Mr. John R. Welch: I am sorry, I did not understand.
Justice John Paul Stevens: Do the public records tell us whether anything happened beyond the filing of the complaint itself on the following (Inaudible).
Mr. John R. Welch: Yes they do, there was -- Wanda Lou Holbert obtained an attorney and fought a counterclaim against Mr. Ohralik.
That suit did pen up until the time these proceedings began in this Court.
Justice John Paul Stevens: Counter suit against Mr. O’Reilly.
Mr. John R. Welch: Mr. Ohralik, yes.
Justice John Paul Stevens: But I thought the claim was filed by Ohralik.
Mr. John R. Welch: It was Your Honor, Ohralik sued Wanda Lou Holbert.
Justice John Paul Stevens: Oh, Ohralik, I am sorry, I thought you said O’Reilly and I thought somebody else.
Mr. John R. Welch: The appellant.
On this record the appellant has failed to demonstrate that his conduct is entirely the First Amendment protection.
His commercials solicitation with the two young women served his interest, not their interest, and his conduct was such as to harm them rather than to help them.
We believe that the State has a legitimate interest in preventing that type of conduct and protecting the citizens of Ohio from such solicitation.
That is all I have at this, Mr. Chief Justice.
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.