Ohralik v. Ohio State Bar Ass'n

436 U.S. 447, 98 S. Ct. 1912 (1978)

 

RULE:

There is a "common-sense" distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech. Rather than subject the First Amendment to such a devitalization, courts instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression. 

FACTS:

Appellant, Ohralik, was an Ohio attorney who had personally approached the victims of an automobile accident. He succeeded in obtaining both victims as clients with regard to claims arising from the accident. Eventually, both young women discharged appellant as their lawyer, but he succeeded in obtaining a share of the driver's insurance recovery in settlement of his lawsuit against her for breach of contract. As a result of complaints filed against appellant by the two young women with the Grievance Committee of the Geauga County, Ohio, Bar Association, The County Bar Association filed a formal complaint with the Board of Commissioners on Grievance and Discipline of the Supreme Court of Ohio. Rejecting the Ohralik’s claim that his conduct in soliciting the clients was protected under the First and Fourteenth Amendments, the Board found that the lawyer had violated the Disciplinary Rules of the Code of Professional Responsibility, which provided that a lawyer should not recommend employment, as a private practitioner, of himself to a non-lawyer who has not sought his advice regarding employment of a lawyer, and that, with some exceptions, a lawyer who has given unsolicited advice to a layman that he should obtain counsel or take legal action should not accept employment resulting from that advice. Adopting the findings of the Board, the Supreme Court of Ohio increased the Board's recommended sanction of a public reprimand to indefinite suspension of the attorney. Subsequently, Ohralek sought a review of the decision of the State Supreme Court.

ISSUE:

Did the County Bar Association have the right to discipline appellant Ohralik for his conduct in soliciting clients, notwithstanding appellant’s claims that his actions were protected under the First and Fourteenth Amendments?

ANSWER:

Yes.

CONCLUSION:

The Court held that the County Bar Association, acting with state authorization, may constitutionally discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent, and thus the application of the Disciplinary Rules in question to appellant for his in-person solicitation of clients for monetary gain did not violate freedom of speech under the First and Fourteenth Amendments, even though there had been no explicit proof or findings of actual harm or injury to the clients whom the attorney had solicited.

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