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g a z e t t e
april 1982
But determining the
appropriate
level of judicial
scrutiny is more art than science; more politics than law,
and men of good will and good sense can differ. Even
American Supreme Court Justices can differ radically on
this question. In so far as it is ever meaningful to catch a
man within a label, Mr Justice Marshall is a 'liberal' and
Mr Justice Rehnquist is not. They differ; and their
difference is instructive.
Thus, Rehnquist aptly observes, 'the Court tells its own
tale of two lawyers: one tale ends happily for the lawyer
and one does not'. Rehnquist, dissenting, takes the view
that both tales should end unhappily. 'We can,' he
observes, implying that we ought not to, 'develop a
jurisprudence of epithets and s l ogans . .. in which
"ambulance chasers" suffer one fate and "civil liberties
lawyers" another.' This would be wrong, Rehnquist
believes, because there is no principled difference between
the two cases and it is only by way o f ' . . . the latitude of
novelists in deciding between happy and unhappy endings
for the heroes and villains of their tales' that the court can
reach different judgments in the two cases.
Rehnquist accuses the court of missing the 'common
thread' between the two cases. He interprets the
Primus
decision as stating 'that South Carolina may not
constitutionally discipline a member of its Bar for
badgering
a lay citizen to take part in "collective activity"
which she
never
desired to join' (author's italics). But (as
the italicised words indicate) this is a mis-description of
the facts of
Primus.
He treats as 'entirely reasonable' a
rule to the effect that 'a lawyer
employed
by the
ACLU
. . . may never give unsolicited advice to a lay person
that he or she retain the organisation's free services'
(author's italics). But
Primus
was not
employed
by
ACLU
and an absolute prohibition is simply inconsistent with the
style
of American Constitutional adjudication. Rehnquist
'cannot share the Court's confidence that the danger of
such [harmful] consequences [ie, drawing an
unsophisticated layman into litigation contrary to his own
best interests] is minimized simply because a lawyer
proceeds from political conviction rather than for
pecuniary gain'. Alas, your author 'cannot share'
Rehnquist's inability to see a distinction between
Ohralik
and
Primus
and, whereas past 'fan' mail suggests that at
least one reader of this
Journal
will side with Rehnquist,
your author follows Mr Justice Marshall and the court in
distinguishing the two cases.
Marshall stresses the extremely 'disparate factual
settings'. Ohralik provides 'classic example of
"ambulance chasing", fraught with obvious potential for
misrepresentation and overreaching'. He notes that the
girls were very young and that Ohralik was 'an
experienced lawyer in practice for over 25 years'. He
continues, 'Any lawyer of ordinary prudence should have
carefully considered whether the person was in an
appropriate condition to make a decision about legal
counsel.' Marshall writes of Ohralik having 'foisted'
himself, in 'gross disregard' of the privacy of Carol
McClintock, Mr and Mrs McClintock and Wanda Lou
Holbert. He is particularly caustic about Ohralik's
'covertly recording' conversations — 'completely in-
consistent with an attorney's fiduciary obligation fairly
and fully to disclose to clients his activities affecting their
interests'. And Ohlarik's 'unethical conduct was further
compounded by his pursuing Wanda Lou Holbert, when
her interests were clearly in potential conflict with those of
his prior-related client, Carol McClintock'. All in all,
Marshall concludes, it is not so much soliciting business
for himself that makes Ohralik's conduct objectionable,
'but rather the circumstances in which he performed that
solicitation and the means by which he accomplished it'.
For Marshall,
Primus
is a fish from an entirely different
kettle. That case reveals 'a "solicitation" of employment
in accordance with the highest standards of the legal
profession'. He writes of the obligation of all lawyers to
help the disadvantaged. Lawyers ought not to be
discouraged from such activities when already, he
believes, too many 'find time to work only for those clients
who can pay fees'. Marshall, therefore, is wholly
supportive of the proposition that 'a state may not, under
the guise of prohibiting professional misconduct, ignore
constitutional rights'
(NAACP v. Button
371 us 415,439
(1963)) and insists, as against Rehnquist, that the two
cases 'deal only with situations at opposite poles of the
problem of attorney solicitation'. And the court
distinguishes in like manner.
In so doing, the court flirts dangerously adjacent to the
old distinction between ideal 'political' and crude
'commercial' speech, discredited in
Virginia Pharmacy,
in order to sustain the proposition that First Amendment
protection of speech does not exclude all forms of
regulation, especially where important state interests are
involved. First Amendment protection is not absolute and
a state does not lose power to regulate commercial activity
deemed harmful to the public simply because speech is a
component of that activity. The recognition that First
Amendment protection is not absolute presents the
question of when the presumption in favour of free speech
is to be upheld and when departed from. In the two cases
cited, the court seeks to draw a distinction between
permitted forms of communication and illegitimate
activities. It seeks to refine
Bates
by drawing a line
between constitutionally permitted communication and
constitutionally prohibited solicitation.
That distinction, fine as it is, shares the basic
philosophy of the Law Society of Scotland's new rules. In
both jurisdictions, lawyer advertising is permitted,
provided one can point to some greater social good or
public interest transcending the narrow personal benefit or
private profit of the individual lawyer. And differences
between the two jurisdictions do not so much reflect a
difference in basic philosophy as a difference in the
conception of the social good or public interest.
Bates
decided that American lawyers may advertise the price of
routine services in the popular press, on the ground that the
free flow of such vital information contributes significantly
to the common good. As Mr Justice Blackman put it in
Bates,
' . . .the consumer's concern for the free flow of
commercial speech often may be far keener than his
concern for urgent political dialogue. Moreover,
significant societal interests are served by such speech.
Advertising, though entirely commercial, may often carry
information of import to significant issues of the day'.
And the question remains as to why the solicitor in
Scotland ought to be prohibited from routinely advertising
his expertise and the normal costs of his services. Much of
the opposition seems to flow from a perverse readiness to
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