IN RE PRIMUS
Legal provision: Association
Argument of Ray P. Mcclain
Chief Justice Warren E. Burger: We will hear arguments next in the matter of Edna Smith, the appellant, 77-56.
Mr. McClain, you may proceed whenever you are ready.
Mr. Ray P. Mcclain: Mr. Chief Justice and May it please the Court.
I am Ray McClain of Charleston, South Carolina.
I represent Edna Smith of Columbia, South Carolina, a member of the Bar of this Court who is seated to my left this morning.
Ms. Smith is before this Court seeking reversal of professional disciplinary punishment imposed on her for advising one Mary Etta Williams that the services of the American Civil Liberties Union were definitely available to Mrs. Williams, with whom she had previously consulted.
Mrs. Williams was a welfare recipient in Aiken, a small community in South Carolina.
Mrs. Williams had been sterilized in early July, 1973 as a condition of her receiving treatment as a Medicaid patient by a physician in Aiken.
This case presents important questions, both under the First Amendment and the due process clause, the due process clause particularly as to the vagueness of the rules as construed by the Court below.
I shall limit my comments here to those issues relating to various aspects of the First Amendment concerned and rely to the briefs as to other due process matters, unless the Court has specific questions.
It is our position that this case is squarely controlled by this Court’s opinion in NAACP v. Button, a decision in which the organizational activities of the American Civil Liberties Union were expressly referred to, and referred to with approval.
That decision, as it has been amplified in the cases of Brotherhood of Railroad Trainmen v. Virginia, United Mine Workers v. Illinois, and United Transportation Union v. Michigan.
The force of those cases, we submit, has been augmented also by this Court’s decision last term in Bates v. the State Bar of Arizona, where the Court extended the application of these prior associational cases to protect advertising of the availability and price of legal services.
Based on these prior decisions --
Chief Justice Warren E. Burger: Would you suggest that the right to face-to-face solicitation is co-extensive with the right to advertise and announce the fees which will be charged for a particular service?
Mr. Ray P. Mcclain: Certainly not co-extensive, but to the extent that the same interests of providing information for informed decision making by the person to whom the information is directed.
First Amendment concerns are equally relevant.
The balancing of interests may be different.
Chief Justice Warren E. Burger: Do you suggest that a face-to-face solicitation by an trained lawyer on the one hand and the untrained layman, untrained at least in the law, presents the same arm’s length factors as an announcement in the paper of a schedule of fees?
Mr. Ray P. Mcclain: Well, in the first place, I think I should point out that in this case the conduct which is alleged to be solicitation, the letter which was written by Ms. Smith, was not a face-to-face confrontation of that sort.
Chief Justice Warren E. Burger: I was beginning by relating it to the case which we just heard argued.
Mr. Ray P. Mcclain: Right and with respect to it, I think that clearly anytime there is a face-to-face confrontation, there are other factors operating that are not operating in a written communication.
Chief Justice Warren E. Burger: Do you think the written letter is equated roughly to the announcement in the newspaper?
Mr. Ray P. Mcclain: I think it is closer to that certain event than an in-person solicitation.
The scope of the First Amendment protection, as we read the Button case and the succeeding cases, is that it protects associational activity to initiate litigation and to support litigation in so far as such litigation may further legitimate goals of the organization by assuring meaningful access to the Courts and that meaningful access does not depend on whether or not the persons who are being informed of their rights are members of the association or not.
They were not in the Button case.
Obviously, the information disseminated in the Bates case was not disseminated to any particular limited association or group.
Further, attorneys may participate in such organizational and associational activities with a similar First Amendment constitutional protection.
Indeed, the parallels that this case presents with the Button case are very striking.
A very important activity of the NAACP in Button was providing legal services.
The Court said it had an extensive program of providing legal services to aggrieved parties in certain types of cases.
That is similar to the situation here.
The NAACP limited the scope at the outset of its undertaking representation of anyone, but thereafter, exercised no control over the actual conduct of the litigation.
The ACLU follows a similar practice.
In button, attorneys really rather aggressively solicited parties, who according to the opinion in the Virginia Supreme Court had never expressed any interest in litigating, had no idea they would be met by an attorney when they went to various community meetings and yet attorneys were there, participating in the attempt to persuade people at these meetings to join lawsuits to attack practices of segregation.
Those attorneys, in this litigation that followed, were compensated on something which was not the case with respect to ACLU attorneys.
The matter here, as in Button, was a suit attacking government practices and in this case, the provision of Medicaid services.
Justice William H. Rehnquist: In this case Mr. McClain, your client pursued a little more aggressively than in Button, did she not?
Why was she not present at the initial meeting and then was told that if the client wished to employ her services, the client would let her know and then, nonetheless, your client followed up with a second solicitation?
Mr. Ray P. Mcclain: The record does not really reflect that, Your Honor.
The only thing that is clearly reflected by the record is that one Gary Allen who had organized the meeting was, according to Mrs. Williams’ testimony, advised that she would call if Mrs. Williams wanted further assistance.
The record is not clear that Ms. Smith was ever told that.
The attorney general at the hearing never asked Ms. Smith whether she had told that.
Justice William H. Rehnquist: It is clear though that your client did make a second attempt to persuade the litigant to file a suit?
Mr. Ray P. Mcclain: I do not agree with that characterization of the letter, Your Honor.
I believe that the record is clear that Ms. Smith wrote a letter.
I do not believe that it can fairly be characterized as an attempt to persuade her.
In her testimony, she explicitly stated that she was not trying to persuade anyone.
In fact, Mrs. Williams testified.
The only evidence that Mrs. Williams, the person allegedly solicited, had on the question of persuasion was that Edna Smith had not attempted to persuade or pressure her in any way to file a lawsuit.
Justice William H. Rehnquist: Well, putting to one side the characterization of the letter which maybe subject to reasonable interpretations on both sides, that follow-up letter is a fact that was not present in Button, is it not?
Mr. Ray P. Mcclain: To my knowledge, in fact, that was actually probably one of the problems in Button.
Many of the people who signed retainer agreements did not even know that lawsuits were going to be filed until after they read about them in the newspaper.
Justice William H. Rehnquist: Well, was there or were there not evidence of follow-up letters in Button?
Mr. Ray P. Mcclain: To my knowledge, I know of none.
Chief Justice Warren E. Burger: I am not sure whether your colloquy with Mr. Justice Rehnquist refers to the letter which I thought was the only letter.
Let me read a part of it and see, she wrote and said “you will probably remember me from talking with you at Mr. Allen’s office in July about the sterilization performed on you.
The American Civil Liberties Union would like to file a lawsuit on your behalf for money against the doctor.
Is that the letter we are talking about?
Mr. Ray P. Mcclain: That is the letter we are talking about, Your Honor.
The letter goes on to state in addition in the next paragraph, in fact there in the next sentence she said “we will be coming to Aiken in the near future and would like to explain what is involved,” this is page 9 of the state’s brief, so you can understand what is going on.
The next paragraph proposes a magazine interview if Mrs. Williams is interested in publicizing the issue of forced sterilizations, which Ms. Smith makes quite clear that it is totally up to Mrs. Williams whether she would participate in that interview or not and asks in the last paragraph about the lawsuit, “If you are interested, let me know.”
There is really no persuasive content to this letter.
In fact, as it was characterized by Ms. Smith in her testimony before the hearing panel, this letter was essentially an attempt to advise Mrs. Williams that the ACLU would in fact give Mrs. Williams assistance if she wanted it.
We have to take into consideration, Your Honor, the fact that Mrs. Williams was relatively uneducated, that Ms. Smith had perceived her as not being very well-informed about her rights and not understanding the initial conversation very well.
This was simply a letter in which there was an attempt made to be sure Mrs. Williams had considered the matter fully before she decided what she was going to do.
Mrs. Williams, shortly thereafter, called Ms. Smith and said “I am not interested in bringing a lawsuit” and that was the end of it.
Mrs. Williams never made any complaint to any agency that she had been pressured by Ms. Smith or never complained in any way about Ms. Smith’s conduct.
Justice Lewis F. Powell: Mr. McClain, would the theory of your case be different if your client had been an ACLU lawyer who would have tried the case had the solicitation been successful?
Mr. Ray P. Mcclain: I do not believe that there is a distinction in the Button case.
That is what happened in Button.
People solicited clients and tried the cases and were paid for them which ACLU cooperating attorneys were not.
Justice Lewis F. Powell: And you stand on Button on that particular point?
Mr. Ray P. Mcclain: I think that this case is less extreme than Button.
Justice Lewis F. Powell: Can I have one step further?
Assume further that the ACLU lawyer, contrary to its practice, allowed counsel who handled damage suits, which would have been this suit, a percentage of the recovery of the fee.
Would that make this commercial speech rather than non-commercial speech?
Mr. Ray P. Mcclain: I believe, Your Honor, that the distinction between commercial and non-commercial speech is a much narrow one.
Your Honor’s opinion in the Pittsburg Press case, for example, appears to characterize commercial speech as only that speech which has no other purpose, but commercial.
Justice Lewis F. Powell: So even if there were a fee interest in the damage recovery, you would not regard that as commercial speech?
Mr. Ray P. Mcclain: I do not believe that makes it commercial speech and that has been true in the pornography and obscenity area and that has been true in many cases before this Court, that there is a financial element, does not make the speech per se commercial, as I read the opinions.
Justice John Paul Stevens: Then what does make it commercial?
Mr. Ray P. Mcclain: If the only purpose is commercial, as in the case that was just argued before ours, then it is commercial speech.
Justice John Paul Stevens: So if a drug store had a sale, “if you bought one cake of soap, you get a second cake free,” that would not be commercial for the second cake of soap?
Mr. Ray P. Mcclain: I would certainly think that is commercial speech, Your Honor.
Justice John Paul Stevens: Is it not any offering of goods or services at any price commercial in the general sense of the word as contrasted to the other kinds of speech, social, economic, political, or religious?
Mr. Ray P. Mcclain: I think that the offer of goods or services to the individual who is offering for compensation, I do not think the offer of free services, for example, would fairly be characterized as commercial.
In fact, that is the distinction that I believe Mr. Justice Powell was just pointing to, that were the client charged something for the services that he was receiving, would that make it commercial?
I do not believe that it would, but that is certainly a different case from the situation that the ACLU has consistently practiced and that there has never been any change presented in this case.
Justice John Paul Stevens: Mr. McClain, I do not think that distinction could holdup.
Supposing the letter was written to a stockholder and there was an offer to represent a class of stockholders to get a big recovery in a statement in the letter that we will not charge you a dime, it would be free to you.
Would that be non-commercial solicitation?
Mr. Ray P. Mcclain: Would the attorney in that case be looking to seek to get an award of fees from the defendant on some?
Justice John Paul Stevens: Yes, from the corporation, -- it is just like they were here, as in this case.
Mr. Ray P. Mcclain: I think it is really different because when you are looking to get compensation from a corporation in which the person holds a stock.
Justice John Paul Stevens: Let us say it is a class action instead of a derivative suit then, but they just want to get money, and would the mere fact that there would be no charge unless the litigation was successful make it not commercial speech, is that your position?
That is what I understood you to say.
Mr. Ray P. Mcclain: No, sir, not unless it were successful, but just the fact that there would be no charge to the litigation was my position.
Justice John Paul Stevens: No charge to the person being solicited for the litigation.
What about this case?
It was contemplated that they would recover dollars and that those dollars would, in part, go into the coffers of the ACLU, that is what the --
Mr. Ray P. Mcclain: No, sir, not at the time the letter was written, I do not believe the record supports that.
Justice John Paul Stevens: It is a suit for damages, it was described as a suit for damages.
Mr. Ray P. Mcclain: That is correct.
It is a suit for money damages, but that all would go to the client.
None of that would go to the ACLU in any respect.
Justice John Paul Stevens: Do we not have to accept that the state Court’s view of the matter that it was contemplated that the fee would be paid to the ACLU and that would be dollars?
Mr. Ray P. Mcclain: That might be ordered by the Court.
Justice John Paul Stevens: Yes, just like the damages would be ordered by the Court.
Mr. Ray P. Mcclain: But in a different sense, -- one important factor is that, for example, the record does not support any notion that Ms. Smith new that the ACLU would ask for attorney’s fees in connection with any litigation.
Justice John Paul Stevens: Do you not think that is a reasonable inference?
Justice Byron R. White: What if it did, what would that violate?
Mr. Ray P. Mcclain: Sir, I am sorry?
Justice Byron R. White: What if it did then what would that violate?
Mr. Ray P. Mcclain: I am just making the point Your Honor that the record in this case does not reflect that Ms. Smith was acting in a fashion to get money for the ACLU.
Justice Byron R. White: What if she were?
Mr. Ray P. Mcclain: I think it is protected.
Justice Byron R. White: She was charged with aiding an organization to promote her legal services with that of her associate.
She was not charged with helping some organization raise some money.
Mr. Ray P. Mcclain: Well, one of the things that the state Court relied on was the possibility of financial benefit to the organization, making it a non-exempt organization.
I did not find that persuasive, but that was relied on below.
Chief Justice Warren E. Burger: But I have understood that all of this colloquy was directed at whether this was commercial or non-commercial speech.
At least I understood Mr. Justice Stevens’ question to you was directed at that.
Mr. Ray P. Mcclain: I believe that is the way it started out, Your Honor.
I think that brings me back to the point which I wanted to make, that the Court found that, as far as this case is concerned.
The ACLU has only entered cases in which substantial civil liberties questions are involved.
So with respect to the ACLU’s activities, we are dealing with a situation where even if some fees might be paid to them eventually, it is in the context of substantial civil liberties litigation.
Justice William H. Rehnquist: When you say substantial civil liberties litigation, what do you mean?
Do you mean a constitutional right?
Mr. Ray P. Mcclain: The constitutional or possibly a statutory right protecting civil liberties.
Justice William H. Rehnquist: How does one know the contours of that if you include within it statutory rights?
Mr. Ray P. Mcclain: For example, there are a number of statues which are deemed to enforce provisions of the Bill of Rights or interests related to the Bill of Rights, certain provision of the Omnibus Crime Control Act involving electronic eves dropping or aimed at the same interests that are protected by the Fourth Amendment.
Justice William H. Rehnquist: What about a state statute that gives you a right of action against someone who deliberately runs you down in a car for personal damages?
That is not a civil liberty statute.
Mr. Ray P. Mcclain: No, sir, that is not.
Justice Lewis F. Powell: What is the difference between that and the sterilization, which is a bad form of battery, I guess?
Mr. Ray P. Mcclain: Well, the issue that was raised in the related litigation on behalf of other women who had been sterilized by this doctor, making that a condition a receipt of governmentally supported services, violated the Federal Civil Rights Act 1983 and 1985.
Justice Lewis F. Powell: I was under the impression, maybe I have a wrong view of the record, that this doctor did these services free at this, that is not --
Mr. Ray P. Mcclain: That is not correct.
Justice Lewis F. Powell: That is not, I see.
He would do it if the patient would agree to this condition.
Mr. Ray P. Mcclain: The patients were Medicaid patients and the doctor would accept them as Medicaid patients only if they would accept sterilization.
He in fact, if the patient were able to pay, he would not require sterilization after the third pregnancy, but that is what he would require with respect to Medicaid patients.
Justice William H. Rehnquist: They were these raw maternity cases?
Mr. Ray P. Mcclain: With respect with this doctor, that is correct.
Justice William H. Rehnquist: They were Medicaid cases of pregnant women and the expenses were in connection with the birth of their children, is that it?
Mr. Ray P. Mcclain: That is my understanding, Your Honor.
Justice William H. Rehnquist: And after the second or third, I guess it was the third child, he said “no, I will not be your physician anymore unless you agree to be sterilized.”
Mr. Ray P. Mcclain: That is my understanding of that record, I was not involved in that case myself.
I would simply like to emphasize that the state concedes that the first meeting at which Ms. Smith met with Mrs. Williams was protected and in its brief on page 30, it says it was protected to advise her of her legal rights, her legal remedies and of the availability of the ACLU.
We find it difficult to see why a letter to a person who Ms. Smith did not perceive to fully understand her rights even after that conversation, a single letter is stripped of all constitutional protection, once that first concession is made that the initial meeting was a protected meeting.
Unknown Speaker: Certainly, you do not claim that just because something is a letter, the writer of it cannot be punished in all sorts of context.
A blackmailing letter can be punishable under the criminal law of any state constitution, can it not be?
Mr. Ray P. Mcclain: That is correct, sir, but there would have to be some interest like that.
Unknown Speaker: By demanding ransom?
Mr. Ray P. Mcclain: That is correct.
Unknown Speaker: Just the fact it is a letter does not give it a free ticket constitutionally to go unscathed through all the criminal statutes state and federally in the United States, does it?
Mr. Ray P. Mcclain: Just a speech which is extortion in nature is not protected at all by the First Amendment.
Unknown Speaker: And all sorts of speech like deceptive speech, fraudulent speech, blackmailing speech.
Mr. Ray P. Mcclain: Agreed, we have no dispute with that.
Unknown Speaker: That would be true also if a coded classified ad were put in a legitimate in the newspaper, a legitimate newspaper, taking an ad which purported to be an ad for the sale of house, but in fact was, by a prearranged code, a direction for how to pay a ransom in a kidnapping.
That would not be protected, would it, just because it was in a newspaper?
Mr. Ray P. Mcclain: I would hardly think so.
Unknown Speaker: Mr. McClain, you said you did not see a difference between the oral reading in July and the letter in August, but the oral meeting was advice on the merits, as I understand it and the August letter was a solicitation after giving advice on the merits.
There is at least a difference, is there not?
Mr. Ray P. Mcclain: Well Your Honor, the only difference is advising the perspective client that the ACLU is definitely available to provide counsel.
Unknown Speaker: “Would you like to bring an action on your behalf, then this practice must stop.”
It was within the power of the Court to treat that as a solicitation, I believe, would you not agree to that?
You could not say such a finding is clearly erroneous.
Mr. Ray P. Mcclain: One of the problems Your Honor is that solicitation was never defined.
I am not absolutely clear as to what was meant by solicitation, it was not the recommending of her own services because she was not found guilty of 2-103A.
Unknown Speaker: But do you not think it is fair to read that letter as recommending that she file a lawsuit?
Mr. Ray P. Mcclain: I think it could be subject to that interpretation.
Unknown Speaker: I would think so, “This practice must stop”, that is what the letter says.
Mr. Ray P. Mcclain: That is an expression of an opinion about it.
Unknown Speaker: By the author of the letter to the person who was reading it, yes.
Mr. Ray P. Mcclain: It is a speech activity commenting on an issue of public interest.
Unknown Speaker: Then, towards the end of the letter, she said “After Labor Day, call me collect” and gave her telephone number.
Mr. Ray P. Mcclain: That is correct.
Unknown Speaker: Does that not support the concept of solicitation with the finding?
Mr. Ray P. Mcclain: You have to remember that the letter also said “if you are interested, let me know.”
It does invite further discussion.
Unknown Speaker: By hypothesis, you would not say in the letter “if you are not interested, let me know.”
Mr. Ray P. Mcclain: No, but it also did not say “please sign this letter and return by return mail and we will represent you”, it was an invitation for further discussions with respect to the conversation.
Unknown Speaker: Could I ask you, what rule was she found to have violated?
Mr. Ray P. Mcclain: Two, Your Honor, DR2-103D which as you commented earlier, involves promoting her activities and 2-104A5, which I never understood.
Unknown Speaker: Do you think that is an independent rule?
Is that a prohibition, I thought it was just an exception.
Mr. Ray P. Mcclain: That has been my understanding in my argument throughout this litigation, Your Honor, but the state Court below did not accept that.
Unknown Speaker: Where did the Court not accept that?
Mr. Ray P. Mcclain: On page 1A of the jurisdictional statements, Your Honor.
Unknown Speaker: What is that?
Mr. Ray P. Mcclain: It says she was found guilty of violating both these rules.
That is the Court opinion.
Unknown Speaker: That goes on and says that the Court adapts the panel report is inaccurate.
Mr. Ray P. Mcclain: That is certainly correct.
Unknown Speaker: Is that not right?
Mr. Ray P. Mcclain: Yes, sir.
Unknown Speaker: What is the final?
Mr. Ray P. Mcclain: Both rules are referred to in the panel report, Your Honor.
It is somewhat opaque to me, too.
I think perhaps you should ask Mr. Kale exactly how that is related.
Unknown Speaker: Because D-5 does not independently proscribe any conduct, does it?
Mr. Ray P. Mcclain: That has been my argument all along, Your Honor.
I agree, but the Court found otherwise.
Unknown Speaker: What conduct do you think it prescribes?
That you may not solicit business for an organization if its primary purpose is to litigate, is that way it has been interpreted, you say, in this case?
Mr. Ray P. Mcclain: I am really not sure, Your Honor.
Unknown Speaker: I suppose it could only be read as saying that her conduct, in the view of the Court, did not come within the exception of D5.
Mr. Ray P. Mcclain: That in every accepted employment which was the original.
Unknown Speaker: If it does not come within the exception, then what she violates is D and that requires for solicitation for her own benefit.
Mr. Ray P. Mcclain: It requires aiding an organization, to promote her services.
Unknown Speaker: To promote her services.
Mr. Ray P. Mcclain: That is the way I had been reading the rules all along, Your Honor.
Unknown Speaker: Do you still argue, let me have this clear, that this letter does not constitute a solicitation?
Mr. Ray P. Mcclain: I do not believe we have conceded.
She did not agree to that, Your Honor.
Unknown Speaker: May I draw your attention to the last five lines.
“About the lawsuit, if you are interested, let me know and I will let you know when we will come down to talk to you about it, we will be coming down to talk to Mrs. Waters and so forth.”
Mr. Ray P. Mcclain: Certainly.
Chief Justice Warren E. Burger: Having said “call me collect” and all these other preliminaries.
Do you still maintain that it is not a soliciting letter?
Mr. Ray P. Mcclain: Your Honor I do not want to make a concession to that effect.
I do not understand precisely what soliciting means in this context.
Chief Justice Warren E. Burger: Let me put it in another way.
You say that that letter is not an adequate basis for a finding by the fact finder that solicitation took place.
Mr. Ray P. Mcclain: Your Honor my understanding is that a disciplinary rule has to be violated.
The only disciplinary rule that talks about what I would think of solicitation is DR2-103A, which is the recommending of the employment of yourself or your associates and 104A which is the acceptance, the rules that are clearly involved in Mr. Ohralik’s case and neither of those rules are involved in this case.
So it is hard for me to admit that this is a solicitation case and I am not really sure exactly what the interpretation was.
Justice John Paul Stevens: Mr. McClain, before you sit down, I understand your argument in 104A, there was no acceptance of employment so the language just does not seem to apply.
I do not thoroughly understand your position on 103D5.
I understand the exception part does not apply, but why does not the first sentence cover this, “A lawyer shall not knowingly assist a person or organization, your client shall not assist the ACLU that recommends, furnishes or pays for legal services to promote his services or those of his partners or associates.”
Now, was it not clear that the associates of your client were involved in the litigation and one of them was paid by the ACLU?
Mr. Ray P. Mcclain: Well, Your honor I think you have to look at that in contrast with 2-103A which talks also about recommending the services of the partners and associates.
Although it was argued below, she was not found to have recommended those services.
Justice John Paul Stevens: But, she assisted an organization that was using the services of those partners.
It would not have really mattered.
Mr. Ray P. Mcclain: Now, that is correct and it seems to me that that is exactly what the Court said in Button.
Justice John Paul Stevens: If it is covered by this, it is constitutionally protected.
That is your main argument, not that it is not within the language.
Mr. Ray P. Mcclain: That is certainly the principal argument.
Justice Byron R. White: Whether or not it is within or without the language, it is a matter of state law, is it not?
And none of our concern, except in so far as it may go to show how vague and unconstitutionally broad, perhaps in your submission, the language is.
Mr. Ray P. Mcclain: That is correct Your Honor.
Justice Byron R. White: Whether or not it is inside or outside it is a matter for the State Court to decide and it has decided it.
Is that not correct?
Mr. Ray P. Mcclain: Except with respect to vagueness of whether there is any other evidence to support the result.
Justice Byron R. White: I am interested in finding out what your understanding is as to what the conduct was that violated 103D, that first sentence that Brother Stevens talked about.
Is it recommending the services of the ACLU which was using an associate of hers as a lawyer?
Mr. Ray P. Mcclain: Your Honor, the construction that is placed on that rule in the State’s brief does not require that there would be any connection between her associates and the ACLU if she assists or cooperates with the ACLU in anyway, she cannot offer its recommended services to anyone as the construction that is put on this rule in State’s brief at Page 49.
It is the construction that I have understood to be put by the state throughout.
That is what makes it such an overbroad rule to totally prohibit a member attorney from recommending the services of the organization.
Thank you, Your Honor.
Unknown Speaker: Mr. McClain, I take it you feel this case is very different from the Ohralik case?
Mr. Ray P. Mcclain: I do not think there is any question about that, Your Honor.
Chief Justice Warren E. Burger: Mr. Kale.
Justice Byron R. White: Do you mind telling me early in the game how you think the conduct involved here violated 103D, that first sentence, if that is your claim?
Argument of Richard B. Kale, Jr.
Mr. Richard B. Kale, Jr.: Yes, sir, Mr. Justice White, it is, of course, our claim that the conduct in this case did violate DR2-103D and I think it is important to look at the South Carolina Supreme Court's --
Justice Byron R. White: Well, you can just tell me, how did it?
Mr. Richard B. Kale, Jr.: It violated the disciplinary rule because it recommended the services of the ACLU which has as members cooperating attorneys, both Ms. Smith’s private law partners, one was a staff attorney for the ACLU and the other one was a cooperating attorney, both of which were participants in the subsequent litigation that arose out of these events.
Justice Byron R. White: You think that she was aiding an organization to promote her services or an associate’s service.
Mr. Richard B. Kale, Jr.: Yes, sir.
Justice Byron R. White: The associate was not a law partner, I take it.
Mr. Richard B. Kale, Jr.: The associate was not a law partner of the firm?
Justice Byron R. White: Yes.
Mr. Richard B. Kale, Jr.: I do not quite understand what you mean by that.
Justice Byron R. White: They were sharing expenses and keeping their own fees, that is what the finding is.
Mr. Richard B. Kale, Jr.: Yes, sir. The court and counsel --
Chief Justice Warren E. Burger: Do you say that brings them within the definition of associates?
Mr. Richard B. Kale, Jr.: Yes, sir.
I think it is very definite that they had established a firm and were portraying to the public that they were a firm and that they were partners in the pursuit of their legal practice.
Chief Justice Warren E. Burger: Do they have to be partners to get within 103D or is also their --
Mr. Richard B. Kale, Jr.: No, sir.
It also provides associates.
This counsel in Court today is required to perform the unpleasant task of examining the ethical conduct of a fellow member of the legal profession.
Appellant Smith, who is a licensed attorney in the State of South Carolina was found by the South Carolina Supreme Court to have violated its disciplinary rules and was publicly reprimanded for this conduct.
The enforcement of disciplinary rules, while perhaps an unpleasant task, is a necessary one for the protection of the welfare of the public and for the protection of the administration of the justice.
Well, indeed, an attorney’s conduct as an officer of the Court does reflect upon the judicial system.
This Court has long recognized the right and, indeed, the necessity of the states to regulate the practice of law within its borders.
The two disciplinary rules which the Court found appellant Smith had violated were disciplinary rules 2-103D5 and 2-104A5 of the American Bar Association’s Code of Professional Responsibility.
This code was adapted in the State of South Carolina by the South Carolina Supreme Court in 1973.
Both of these rules concern the solicitation of business by a lawyer.
However, the instant case involves more than the mere recommendation by an attorney of his employment or the employment of his partners or associates.
The instant case involves the question, can an attorney in attempt to induce or persuade a perspective client to bring a lawsuit and to permit the attorney, his partner or his associates to handle the case.
Because of the differing factual interpretations in this case, I would like to briefly refer to the record.
It is undisputed that Mrs. Williams, who appellant saw as a client for the American Civil Liberties Union, had not requested legal assistance from Ms. Smith or from any other person.
In July of 1973, a meeting was arranged by appellant Smith and Mr. Gary Allen for the purpose of Ms. Smith advising certain women about the sterilization performed upon them by their private physician.
This meeting was attended by members of the press.
Mrs. Williams had not requested this meeting and in fact, did not know of the meeting until she was approached by Mr. Allen as she left the hospital where her child was critically ill and was not expected to live.
Mr. Allen requested Mrs. Williams to accompany him to meet the appellant.
Ms. Smith advised Mrs. Williams about her legal rights.
They went into depth about the sterilization question.
She told her of her legal rights and remedies and she even advised her at that time that the American Civil Liberties Union could render legal services to Mrs. Williams.
Mrs. Williams left the meeting after informing appellant that if she decided to bring a lawsuit, she would contact the appellant.
Mrs. Williams never contacted Ms. Smith to make any such request.
It is a position of the state that the appellant’s further attempt to secure Mrs. Williams as a client by writing the letter of August 30, 1973 is not protected by the First Amendment and is clearly prohibited by the disciplinary rules in question.
Certainly, when Mrs. Williams left the meeting, she was in a position to decide her own best interest about the lawsuit.
To permit the conduct, in this case, would only encourage attorneys to be persistent with potential clients.
The danger of committing the conduct, I think, is well illustrated by the testimony of Mrs. Williams which I would like to quote to the Court.
She said “I got tired of everybody aggravating me.”
Chief Justice Warren E. Burger: Where do we find that?
Mr. Richard B. Kale, Jr.: That is at Page 57 of the Appendix.
“Everyone was coming to ask me, was I not going to file a lawsuit.
After I had said 100 times I did not want to sue, then I got that notion that maybe if I did sue maybe they would leave me alone.
I am tired of being bothered.”
This points up, I think, a very important reason for having rules against solicitation in that people ought to be able to decide whether they want to bring a lawsuit or select an attorney without pressure or any type of inducement by an attorney.
Justice John Paul Stevens: Mr. Kale, may I just ask one question here.
Supposing the letter had not been written by Ms. Smith, but rather had been written by the ACLU, would such a letter have been constitutionally protected?
Justice John Paul Stevens: Your Honor, we do not believe it would be.
I am just wondering that is not a distinction that you rely on with respect to the Button case and the fact, the letter was written by the lawyer rather than by the --
Justice John Paul Stevens: No, sir.
Of course, the distinction here is that as a disciplinary action, we have ability to discipline attorneys.
We do not have the ability to confront the organization.
I will Presume that you get an injunction against the layperson or something like that.
What if she had just given advice at the first meeting and had not said “we will represent you or the ACLU will represent you,” and then she went home and a month later the ACLU decided “yes, it would finance a lawsuit”, and then they had written this letter, would it have been protected then?
Mr. Richard B. Kale, Jr.: Your Honor, I can only refer to the decision of the South Carolina Supreme Court.
They did not, in their opinion, find any misconduct because of the first letter.
It was a subsequent seeking of the client that they found was irreprehensible conduct.
Justice John Paul Stevens: Well, if that is so and if the ACLU did not decide to provide free legal services for this person until after the first meeting, how could the ACLU communicate that information to that person?
Is there anyway in the world they could do it without --
Mr. Richard B. Kale, Jr.: Your Honor, I do not think it is necessary that the organization state to the potential client that they desire to bring it.
I think Mrs. Williams knew at the time she was advised.
Justice John Paul Stevens: Well, what I am saying -- supposing the first meeting was a little more inconclusive -- assume the first meeting is legal advice about a potential lawsuit and nothing about financing or willingness to participate and then the lawyer goes home.
After that, the ACLU decides “yes, we would like to sponsor this litigation.”
Can they constitutionally tell the potential client that fact?
Mr. Richard B. Kale, Jr.: Your Honor, under my reading of the disciplinary rules, they would not be able to communicate the letter even if they had not advised her in the July meeting.
Justice John Paul Stevens: Then, there is just no way that that information could be communicated to the potential client.
That is what you are saying.
The Constitution does not afford any protection to that particular --
Mr. Richard B. Kale, Jr.: Not through personal solicitation.
Justice Byron R. White: Would you say the same if the writer of the letter is an employee of the American Civil Liberties Union, a hired lawyer or a paid staff member?
Mr. Richard B. Kale, Jr.: Yes, sir.
I do not believe that he would be able to convey to the organization.
Justice Byron R. White: You do not think that is covered by Button?
Mr. Richard B. Kale, Jr.: No, sir.
Perhaps, at the outset, we should deal with appellant’s argument that the disciplinary rules in this case are overbroad.
Of course, we contend that the activities on this record were not protected by the First Amendment, but even if the Court should find the solicitation by attorneys has afforded some protection under First Amendment, we would submit to the Court that such would be commercial expression to which the over-breadth doctrine applies weakly at all.
As the Court noted in Bates v. State of Arizona, commercial expression is not likely to be crushed by such restrictions.
We would urge to the Court not to apply over-breadth to the case of solicitation by attorneys as they decline to apply it to professional advertising.
The litigation which appellant sought to promote in this case was an action for, as she expressed it, money against Mrs. Williams’ private physician.
We maintain that this was private litigation which the Court in Button clearly recognized as being traditionally condemned.
I would point out that, last week, this Court considered another sterilization case in Stump versus Barton in which a daughter had been sterilized at the request of her natural mother and sole parent.
Regardless of whether one considers the mother’s actions in that case to be right or wrong, it occurs to me that if we accept the appellant’s argument that an attorney has the right to persuade or induce potential client to file a suit, then an attorney in that case could of course persuade or induce the daughter to file a suit against the mother.
I could not think of any conduct which would be less desirable by an attorney.
Justice William H. Rehnquist: Can you decide this case on the basis of how you feel about particular kinds of lawsuits?
Does there not have to be some general rule one way or the other?
Mr. Richard B. Kale, Jr.: Your Honor, I think it would be difficult to draw a disciplinary rule that distinguished between a conduct on the basis of the type of lawsuit that was brought.
The role of an attorney in the society should be to settle disputes and not assume the role of provoking such disputes.
The Court in Button clearly recognized the undesirability of steering up litigation which interferes with established relationships as in this particular case, the relationship between a private physician and his patient.
I find it interesting to note the appellant’s argument.
Justice William H. Rehnquist: How about Rule 10-B5, for example that certainly encourages litigation between an established relationship of a client and a stockbroker?
Can you make that generalization against the constitutional challenge that the state has the right to discourage steering up litigation that questions or challenges an established relationship?
Mr. Richard B. Kale, Jr.: Your Honor, I think you can if it is a private relationship.
For example as the Court noted in NAACP v. Button, a litigation which would solve family discord or litigation which interfered with private relationships, I would not assume that the relationship between a stockbroker and his client would be such a private relationship as between a physician and his patient.
I find it interesting to note appellant’s argument that what she was trying to convey to Mrs. Williams in her August 30 letter was to bring action against government, as she maintains.
If you look at the letter, this was not what she told Mrs. Williams.
She said “The ACLU would like to file a lawsuit on your behalf for money against the doctor who performed the operation.”
The letter, I think, was clearly misleading to Mrs. Williams who at the panel hearing, stated that she had only been told by appellant that the only thing that could be accomplished by the lawsuit was to get money.
I feel that the letter of August 30th was clearly an inducement to Mrs. Williams with the prospect of receiving money to allow the American Civil Liberties Union to file a suit for her.
Justice Byron R. White: If the legal department of a Union writes to one of its members recommending that the members start litigation with respect to something that has happened to them, would that be proscribed by these rules or the Union is not the kind of an organization that is covered by the rule?
Mr. Richard B. Kale, Jr.: Your Honor, I think the rules in question specifically have excluded the Court’s line of decision in the Union cases, where collective activities to members to attain access to the legal system has been protected.
I think it is an important point here to note the difference in that Mrs. Williams was not a member of the organization.
There was no protection of collective activities by the members who, I think in the Court’s decision in the Union cases, was always the aggrieved party that should attain access to the Court.
I do not believe that the Court ruled in the Union cases that attorneys can participate in collective activities to obtain access to the Courts.
I think it was always from the standpoint of the aggrieved parties obtaining access to the Court.
Justice Byron R. White: But if the Union were involved, I suppose its lawyers could make recommendations to its members.
Mr. Richard B. Kale, Jr.: Yes, sir, to its members.
Justice Byron R. White: But, not to outsiders?
Mr. Richard B. Kale, Jr.: No, sir.
Chief Justice Warren E. Burger: Was there not something in Justice Black’s opinion to the effect that this was embraced within the services that the Union members were receiving in exchange for their dues to have a lawyer experienced in these kinds of cases?
Isn't there some intervention --
Mr. Richard B. Kale, Jr.: I believe you are right Your Honor.
I think another important consideration that you have in this case which justifies the prohibitions of solicitation are the potential conflicts that arise with an organization that attempts to achieve organizational goals through litigation and their representation of non-members.
Certainly, the interest of the organization and the non-member are not so identical, as the Court noted in NAACP v. Button that the potential conflicts of interest cannot arise.
Justice Byron R. White: What rule would cover, if there is one, a direct solicitation by the ACLU, say that precedent of the ACLU, a non-lawyer wrote the same letter to this lady, would there be similarities?
Mr. Richard B. Kale, Jr.: We can not prohibit a non-lawyer under the disciplinary rules, from doing anything.
Justice Byron R. White: Yes, but is there a statute that prohibits that kind of solicitation?
Mr. Richard B. Kale, Jr.: There is a statute in South Carolina prohibiting solicitation.
Justice Byron R. White: Would it cover my example?
Mr. Richard B. Kale, Jr.: Your Honor, I cannot say for sure.
I do not think there has ever been a prosecution that I know of under that criminal statute.
Justice Byron R. White: But if the organization uses a lawyer to solicit, it is covered under this rule?
Mr. Richard B. Kale, Jr.: Yes, sir.
Lawyer’s activities are, of course, proscribed under these rules.
Chief Justice Warren E. Burger: I take it you indicate there are other prohibitions about a non-lawyer soliciting business for lawyers.
Mr. Richard B. Kale, Jr.: We have a criminal statute in the State of South Carolina which prohibits solicitation.
Justice Potter Stewart: Solicitation has a variety of meanings?
Mr. Richard B. Kale, Jr.: Yes, sir.
Solicitation of legal business, excuse me sir.
Justice Potter Stewart: By a non-lawyer?
Mr. Richard B. Kale, Jr.: Yes, sir. [Laughter]
Justice John Paul Stevens: Mr. Kale, the distinction between members and non-members, the Button case if I remember involves solicitation of litigation of non-members of the NAACP, did it not?
Mr. Richard B. Kale, Jr.: Yes, sir.
I believe that is correct.
However, if you look at the case in the NAACP v. Button, you will note that the normal way that the NAACP obtained clients was not through solicitation, but from a request directly by the client to the NAACP except in desegregation cases.
In desegregation cases, the NAACP undertook a program in order to implement the Court’s decisions in Brown v. Board of Education in 1954 and subsequent to --
Justice John Paul Stevens: How is that different from an ACLU program to put an end to sterilization?
Mr. Richard B. Kale, Jr.: Your Honor, we would maintain that the difference being that the action in desegregation cases were actions against government.
Here, as the Fourth Circuit noted in the subsequent litigation that came out --
Justice John Paul Stevens: So they probably found no state action, but at the time of what we are describing as a solicitation, it was the view of the ACLU and its attorneys that there was a valid state action theory that they could proceed on, was it not?
They did file a 1983-case.
Mr. Richard B. Kale, Jr.: Your Honor, I think you would have to look at the view as far as the disciplinary actions of the appellant at the time she wrote the letter.
In the letter, she said “we would like to file an action for money against the doctor.”
Justice John Paul Stevens: ...against the doctor on the theory that the doctor is acting Colorado state law.
Mr. Richard B. Kale, Jr.: If we have to go one step further and say “what happened in subsequent litigations, did we not envision an action against government?”
Then, I think you would have to take it maybe one step further and say that “Well, maybe we have to wait to the conclusion of the litigation to determine whether this was in fact action against government.”
My point is, as far as this particular action, I do not believe it was the type of action which the Court attempted to carve out any type of exception.
No more so than, for example, if an individual had brought a suit and named of the State of South Carolina as a defendant under the Motor Vehicle Tort Claim Act.
Justice John Paul Stevens: But, why not?
I really do not quite get your theory.
Is it because it ended up with the finding that there was no state action or is it because it was a frivolous state action claim or there is a difference between sterilization and segregation?
Precisely what is the difference between this and the kind of litigation involved in Button?
Mr. Richard B. Kale, Jr.: Your Honor, the difference is that of course I think, it interfered with a private relationship, obtaining a relationship --
Justice John Paul Stevens: Imagine at the time of litigation, it grew out of the NAACP activities under quite a few private relationships.
Mr. Richard B. Kale, Jr.: Yes sir, but not the established type of relationship that you have between a doctor and his patient.
Moreover, the type of litigation that they had in Button did not, as the Court recognized, have any financial benefit to the organization which, of course, it has in this particular case of the possibility of Court order of attorneys.
Justice John Paul Stevens: That does not turn on the kind of litigation then, that turns on --
Mr. Richard B. Kale, Jr.: No, sir.
Justice John Paul Stevens: -- on the kind of compensation.
Justice William H. Rehnquist: Well, Mr. Kale, with all respect to my colleagues and many here in the room, what is the difference for constitutional purposes between the relationship between a doctor and his patient or a lawyer and his client and the relationship between the Avon lady and the person she calls on to sell cosmetics to?
Mr. Richard B. Kale, Jr.: Well, of course the Avon lady and her client is purely a commercial type of relationship.
Justice William H. Rehnquist: Yeah, ordinarily, I would think of her as a customer rather than a client.
Mr. Richard B. Kale, Jr.: Yes, sir.
I think it is the professionalism that is involved in the particular relationship of a patient and his doctor which requires a certain amount of trust.
If lawsuits are proscribed, I think that, very seriously, this will interfere with the type of professional relationship they have.
Justice William H. Rehnquist: So you say it heightens the state’s interest when you have this kind of professional relationship?
Mr. Richard B. Kale, Jr.: Yes, sir.
Justice Byron R. White: Would the NAACP today violate this rule or the paid staff lawyers for the NAACP, if they wrote non-members of the NAACP suggesting litigation to cure some situation that the NAACP thinks should be cured?
Mr. Richard B. Kale, Jr.: Your Honor, I do not believe the Court intended in NAACP v. Button to give the NAACP a complete blanket exemption from soliciting clients.
Justice Byron R. White: What is your answer?
Is it yes?
Mr. Richard B. Kale, Jr.: Yes, sir.
I think it very well could be.
Justice Byron R. White: Well, do you think it would or not?
Mr. Richard B. Kale, Jr.: What was the specific litigation they were soliciting?
Justice Byron R. White: To a school suit.
Mr. Richard B. Kale, Jr.: Not a school suit, no, sir I think.
Justice Byron R. White: What do you mean no school suit?
Mr. Richard B. Kale, Jr.: Do you mean for desegregation?
Justice Byron R. White: Yes, the it wants to get specific individuals to bring the suit and they will represent them.
Mr. Richard B. Kale, Jr.: Then, I think you are of course getting very, almost in a factual situation in NAACP v. Button.
Justice Byron R. White: Even though the paid lawyer for the NAACP is writing a letter soliciting business or soliciting a lawsuit and the NAACP will profit from an attorney’s fee?
Mr. Richard B. Kale, Jr.: Well, Your honor, of course the type of conduct that was involved in the case before the Court in 1963 which the Court I think very closely stated that they were limiting their decision to the record on the Court.
Chief Justice Warren E. Burger: We will resume there at 1 o'clock counsel.
You may resume Mr. Kale.
Mr. Richard B. Kale, Jr.: Mr. Chief Justice and may it please the Court.
At this point, I think I would like to make some brief summary marks and close my argument and I would like to urge the Court to consider in the facts of this case that the perspective client, Mrs. Williams, had been advised prior to the August letter from appellant Smith of her legal rights and remedies and availability of the ACLU to represent her.
Appellant Smith, in her testimony before the Grievance Committee, testified that in her letter she was seeking members of the plaintiff class so that the American Civil Liberties Union could have clients.
I would submit that the First Amendment was not intended to protect or afford the attorney a right to secure the client.
We would respectfully request that this Court consider these facts and affirm the decision of the South Carolina Supreme Court.
Chief Justice Warren E. Burger: Thank you, Gentlemen.
The case is submitted.