Law School Case Brief
In re Primus - 436 U.S. 412, 98 S. Ct. 1893 (1978)
The First and Fourteenth Amendments require a measure of protection for advocating lawful means of vindicating legal rights, including advising another that his legal rights have been infringed, and referring him to a particular attorney or group of attorneys for assistance.
An attorney who was engaged in private practice in South Carolina, was also affiliated with the American Civil Liberties Union (ACLU), an organization engaging in litigation involving substantial civil liberties questions as a vehicle for effective political expression and association, as well as a means of communicating useful information to the public. After the attorney had addressed a gathering of women concerning their legal rights as persons who had been sterilized as a condition to their receipt of public medical assistance, the ACLU told the attorney that it was willing to provide legal representation for the women who had been sterilized. Upon receiving information that one of the women in attendance at the meeting desired to institute suit against the physician who had performed her sterilization, the attorney apprised that woman by mail of the ACLU's offer. Subsequently, a complaint was filed with the Board of Commissioners on Grievances and Discipline of the Supreme Court of South Carolina, charging that the attorney had engaged in solicitation in violation of the Canons of Ethics for attorneys by sending the "solicitation" letter. In its report, a panel of the Board recommended that the attorney be found guilty of soliciting a client on behalf of the ACLU in violation of the Disciplinary Rules for attorneys. The full Board, after a hearing, approved the panel report and administered a private reprimand. The Supreme Court of South Carolina adopted the findings and conclusions of the panel report and increased the sanction against the attorney to a public reprimand. The United States Supreme Court granted the attorney's petition for certiorari review.
Was it proper for the state board to reprimand the attorney for "solicitation" of clients, which is a violation of the state's disciplinary rules for attorneys?
The United States Supreme Court held that South Carolina's application of disciplinary action for the attorney's solicitation activity, which activity fell within the generous zone of First Amendment protection reserved for associational freedoms, violated the First and Fourteenth Amendments in regard to the protections for political expression and association. The Court found that the attorney’s actions were undertaken to express personal political beliefs and to advance the civil liberties objectives of the ACLU, rather than to derive financial gain. The state's action in punishing petitioner for soliciting a prospective litigant by mail, on behalf of the ACLU, did not withstand the exacting scrutiny applicable to limitations on core First Amendment rights.
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