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g a z e t t e
april 1982
refining and clarifying the decision in
Bates.
This article
concerns itself with two such cases, viz,
Ohralik v. Ohio
State Bar Association
and
In Re Primus
, argued together
on 16th January 1978 and decided on 30th May 1978.
In
Bates
the Court expressly reserved the question of
the permissible scope of regulation of 'in person
solicitation of clients — at the hospital room or the
accident site, or in any other situation that breeds undue
influence'. In
Ohralik
the court held that a state, normally
by way of its bar association, may, consistently with the
Constitution, discipline a lawyer for soliciting clients in
person, for pecuniary gain. But in the case of
In Re Primus
the court distinguishes the activity of a lawyer such as
Albert Ohralik and that of lawyers associated with a non-
profit organisation, engaging in litigation as a form of
political expression, holding that solicitation of
prospective litigants is protected by the First Amendment.
The facts of the two cases are briefly rehearsed.
Ohralik
Albert Ohralik, then a practising member of the Ohio
State Bar, learned in casual conversation with the
postmaster's brother as he collected his mail on 13th
February 1974, that Carol McClintock, a young woman
with whom Ohralik was casually acquainted, had been
injured in an automobile accident on 2nd February 1974.
Ohralik telephoned the girl's parents, who told him that
she was in hospital. He suggested that he might visit her
there. Mrs McClintock agreed, on condition that he call in
to see the McClintocks before going on to see Carol.
The McClintocks explained, during this visit, that
Carol had been involved in an automobile collision in the
family car with an uninsured motorist. Both Carol and her
passenger, Wanda Lou Holbert, were injured and
admitted to hospital as a result. The McClintocks evinced
anxiety lest Holbert sue them, but Ohralik indicated that
Ohio's guest statute would preclude this. Ohralik
suggested, none the less, that the McClintocks hire a
lawyer, but they responded that this would be a matter for
Carol, who was eighteen years of age.
Ohralik then went to the hospital and interviewed
Carol. He said that he would represent her and asked her
to sign an agreement. Carol said that she would like to
discuss the matter with her parents and asked Ohralik to
have them visit her. Despite the absence of an agreement
to represent her, Ohralik went to considerable lengths to
obtain photographs of Carol, still in traction as a result of
the accident. Ohralik also tried to see Holbert but failed,
since she had already been discharged.
Ohralik revisited the McClintocks, having photographed
the scene of the accident and having concealed a tape-
recorder on his person. He studied their insurance policy
and discussed the legal issues with them. He discovered
that the policy would provide up to $ 12,500 each for Carol
and Holbert, under a clause relating to accidents with
uninsured motorists. Mrs McClintock acknowledged that
either, indeed both, Carol or Holbert could sue, but
stressed that "Wanda swore . . . she would not do it'.
Ohralik was also told that Carol had telephoned, saying
that he could 'go ahead'. Two days later he returned to the
hospital where Carol signed an agreement which provided
for Ohralik's receiving one-third of whatever sum might be
recovered.
Ohralik also discovered Holbert's address by
representing to the McClintocks that he required to
question her about the accident. He then visited her at
home, quite uninvited. Again, he covertly tape-recorded
much of the conversation. He told her that he had a 'little
tip', namély, that the McClintocks' insurance policy
contained a clause which might provide her with up to
$ 12,500. He asked her if she wished to file a claim. Wanda
Lou, eighteen, and not yet a high school graduate, said that
she did not understand, but when Ohralik offered to
represent her, also on the basis of a one-third contingent
fee, she said, 'OK', apparently at Ohralik's suggestion that
this would suffice to indicate assent.
The following day, Mrs Holbert sought to repudiate this
oral assent, stating that neither she nor Wanda Lou
wanted to sue anyone, nor did they want legal
representation and, if they did, they would consult their
family lawyer. Ohralik insisted that Wanda Lou had
entered into a binding contract. One month later, Wanda
Lou, herself, wrote saying, again, that she did not want to
sue anyone and did not wish to be represented by Ohralik.
She requested that he intimate to the insurance company
that he was not representing her. Actually, the insurance
company were willing to pay up but were unready to do so
as long as Ohralik claimed and Wanda Lou denied that he
represented her. Before he would 'disavow further interest
and claim' he insisted that Wanda Lou first pay him about
$2,500, being one-third of his 'conservative' estimate of
her claim, and he even initiated court action for recovery
of this sum. Carol McClintock also sought to discharge
Ohralik. Another lawyer represented her and concluded a
settlement of $12,500 with the insurance company.
Ohralik successfully sued for his third of this sum, that is,
for $4,166.66. Incidentally, the fees for the other lawyer
who acted for Carol amounted to only $900.
Hardly surprisingly, both young ladies filed complaints
against Ohralik with the appropriate County Bar Associa-
tion. The Association filed formal complaints with the
Board of Commissioners on Grievance and Discipline of
the Supreme Court of Ohio. The Board determined that
Ohralik had violated Disciplinary Rules of the Ohio Code
of Professional Responsibility, primarily those directed
towards discouraging lawyers from suggesting that a non-
lawyer take legal action and, should
that
happen, from
recommending themselves or their close associates. The
Board imposed a public reprimand. On the Constitutional
question, the Supreme Court of Ohio held that Ohralik's
'commercial speech' did not fall within First Amendment
protection and increased the sanction to indefinite
suspension. On appeal, the us Supreme Court affirmed
this interpretation of the First Amendment.
Whatever this case teaches about advertising — and
one might properly feel that it is concerned solely with the
quite distinct question of solicitation — the lawyer on this
side of the Atlantic is bound to regard it as providing
compelling evidence (as if any were necessary) that a
contingent fee system of litigation is wholly detrimental to
the interests of clients and to the image of the profession.
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