Year: 2015
Type: article
Abstract: Recent controversies involving attorney solicitation of clients compel an examination of commercial speech1 and its constitutional protections.The application of first amendment 2 protection to communication between an attorney and a potential client was considered recently by the United States Supreme Court in the companion cases of In re Primus 3 and Ohralik v. Ohio State Bar Association.4 In these cases, the Court held that solicitation 1.Commercial speech describes speech arising from purely commercial transactions.Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 455 (1978).It is distinguished from noncommercial speech by its content.Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 761 (1976).Although the United States Supreme Court has held that commercial speech is protected by the first amendment, it does not enjoy the same preferred position as noncommercial speech.The two types of speech have been held to be not "wholly undifferentiable," thus the "common sense differences" between speech proposing a commercial transaction and other varieties of speech have not been discarded.Id. at 771 n.24.Advertising has been characterized as a "classic example" of commercial speech.Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U.S. 376, 385 (1973).Commercial speech, however, is not confined to advertising.Id. at 384.See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964).Solicitation is a form of commercial speech, Ohralik v. Ohio State Bar Ass'n, 436 U.S. at 454, but it has been distinguished from advertising.See note 32 infra.2. The first amendment guarantees freedom of speech and association.U.S. CONST.amend.I.This amendment is applicable to the states through the fourteenth amendment.U.S. CONST.amend.XIV.3. 436 U.S. 412 (1978).In Primus, allegations had been made that pregnant women had been sterilized or had been threatened with sterilization by their doctor as a condition of the continued receipt of medical assistance under the "Medicaid" program.The American Civil Liberties Union was contacted by a concerned individual in the community who wanted a representative to address some of these women.At the ACLU's request, attorney Primus arranged a meeting, advised the women of their legal rights, and suggested the possibility of a lawsuit.Id. at 416.Subsequently, the ACLU decided to provide free legal representation for the sterilized women.When Primus learned that one of the women wanted to bring suit, she relayed the ACLU's offer of free representation through a letter.This letter became the basis of the complaint filed against her.Id at 417.The Court held that Primus' solicitation for ideological and associational reasons was protected.Id. at 431.See text accompanying notes 62-64 infra.4. 436 U.S. 447 (1978).Ohralik, an attorney, learned of an automobile accident involving a casual acquaintance.Subsequently, Ohralik visited the injured party and offered to represent her.The victim did not sign a contract immediately because she wanted to discuss the matter with her parents.Nevertheless, Ohralik took pictures of the victim in traction and later took pictures of the accident scene.Id. at 450.Ohralik also taped a subsequent conversation with the victim's parents on a concealed tape recorder.Eventually a contingent-fee contract was signed. Id.Ohralik obtained the name of the other injured party and went to her home uninvited.After Ohralik provided a "tip" on the possible amount of recovery, the victim, admitting she was confused, said he could represent her.Id. at 451.When the victim's mother attempted to repudiate the agreement, Ohralik refused to withdraw, thereby causing a delay in the settlement with the insurance company.Both girls discharged him and subsequently filed a complaint.
Author: Lisa A. Schwartz
Institution: DePaul University
Language: English
Topic: Law, Rights, and Freedoms
Subfield: Sociology and Political Science
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W40645263