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g a z e t t e
Primus
Edna Smith Primus is a practising lawyer in South
Carolina. At the relevant time she was
(a)
associated with
the 'Carolina Community Law Firm', an expense-sharing
arrangement with each attorney keeping his own fees,
which subsequently changed its name to 'Bohl, Smith and
Bagby'; (b) an officer and an unpaid co-operating lawyer
with the Columbia branch of the American Civil Liberties
Union (ACLU); and (c) a legal consultant, paid a retainer,
for the South Carolina Council on Human Relations.
As can be imagined, reports that pregnant mothers in
receipt of public assistance were being sterilised or
threatened with sterilisation as a condition of receipt of
medical assistance gave rise to disquiet. A call was made
to the Council to send a representative to speak to women
who had been sterilised. The Council sent Primus, who
addressed a meeting advising those present, including one
Mary Etta Williams who had been sterilised by Dr Clovis
H. Pierce after the birth of her third child, of their legal
rights and of the possibility of a law suit. This was in July
1973.
In August 1973 the
ACLU
informed Primus that it was
willing, in furtherance of its role as a national non-partisan
organisation defending the Bill of Rights for all without
distinction or compromise, to provide representation for
sterilised mothers. Primus, having been informed by the
organisers of the July meeting that Williams wished to sue
Dr Pierce, wrote informing Williams of the
ACLU'S
offer of
free legal representation. Not long after receiving that
letter, Williams visited Dr Pierce regarding an illness of
her third child. At the doctor's office she met his lawyer,
who asked her to sign a release of liability for Dr Pierce.
Williams showed that lawyer and Dr Pierce the letter from
Primus. They retained a copy. She telephoned and stated
that she did not intend to sue. This concluded the
communication between Williams and Primus.
The Secretary of the Board of Commissioners on
Grievances and Discipline of the Supreme Court of South
Carolina filed a formal complaint charging Primus with
'solicitation in violation of Canons and Ethics'. Primus
denied the charge, founding among other things upon the
First Amendment. A panel of the Board determined that
Primus was guilty of solicitation contrary to Disciplinary
Rules. The panel accepted that the evidence was
inconclusive as regards solicitation by Primus on her own
behalf, but it took the view that she did solicit Williams on
behalf of the ACLU. The panel thus interpreted the Dis-
ciplinary Rules as prohibiting solicitation of a client for a
non-profit organisation. The full Board approved the panel
report and administered the private reprimand which the
report had recommended. The Supreme Court of South
Carolina adopted the panel report and increased the
sanction to a public reprimand. Primus appealed. The us
Supreme court reversed.
The crucial distinction between the two cases is to be
found in the nature of the ACLU, whose sponsorhip is not
motivated by pursuit of pecuniary gain but rather by its
widely recognised objective of vindicating civil liberties.
That circumstance brings the issue under the decision in
NAACP
v.
Button
[371 us 415 (1963)] which determined
that it is unconstitutional for a state (in the event, Virginia)
to prohibit, under its quite legitimate powers to regulate
april 1982
the legal profession, the solicitation of prospective
litigants for the purpose of furthering civil rights because
such solicitation falls within the right to engage in
association for the advancement of beliefs and ideas.
One should never forget that instruments such as the
American Constitution, whatever their tenor, and
however uncompromisingly expressed, simply are not
absolute in operation. Thus, even, after
Bates,
which
extends First Amendment protection to price advertising
by lawyers, states retained the power to regulate lawyer
advertising and the legal profession. The states retain a
broad power to regulate the practice of professions within
their boundaries. Indeed, 'the interest of the states in
regulating lawyers is especially great since lawyers are
essential to the primary governmental function of
administering justice, and have historically been "officers
of the courts" ' (
Goldfarb
v.
Virginia State Bar,
421 us
773, 792 (1975)).
Ohralik
demonstrates that the states'
powers may quite properly restrict what lawyers may say
and do, even where 'speech', including 'commercial
speech', is normally protected by the First Amendment so
that state laws restricting it risk declaration of
unconstitutionality. But
Primus
raises a countervailing
value, namely, political association for the advancement
of beliefs and ideas. And that places limits on what a state
properly can do. Even if a state is entitled to regulate its
legal profession, it cannot enact such regulations as cut
excessively into associated rights of beliefs and ideas.
Ultimately, in the language of American constitutional
law, the difference between
Ohralik
and
Primus
is a
difference in the appropriate level of judicial scrutiny.
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