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PRIMUS

decided: May 30, 1978.

IN RE PRIMUS


APPEAL FROM THE SUPREME COURT OF SOUTH CAROLINA.

Powell, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Blackmun, and Stevens, JJ., joined, and in all but the first paragraph of Part VI of which Marshall, J., joined. Blackmun, J., filed a concurring opinion, post, p. 439. Marshall, J., filed an opinion concurring in part and concurring in the judgment, post, p. 468. Rehnquist, J., filed a dissenting opinion, post, p. 440. Brennan, J., took no part in the consideration or decision of the case.

Author: Powell

[ 436 U.S. Page 414]

 MR. JUSTICE POWELL delivered the opinion of the Court.

We consider on this appeal whether a State may punish a member of its Bar who, seeking to further political and ideological goals through associational activity, including litigation, advises a lay person of her legal rights and discloses in a subsequent letter that free legal assistance is available from a nonprofit organization with which the lawyer and her associates are affiliated. Appellant, a member of the Bar of South Carolina, received a public reprimand for writing such a letter. The appeal is opposed by the State Attorney General, on behalf of the Board of Commissioners on Grievances and Discipline of the Supreme Court of South Carolina. As this appeal presents a substantial question under the First and Fourteenth Amendments, as interpreted in NAACP v. Button, 371 U.S. 415 (1963), we noted probable jurisdiction.

I

Appellant, Edna Smith Primus, is a lawyer practicing in Columbia, S. C. During the period in question, she was associated with the "Carolina Community Law Firm,"*fn1 and was an officer of and cooperating lawyer with the Columbia branch of the American Civil Liberties Union (ACLU).*fn2 She received

[ 436 U.S. Page 415]

     no compensation for her work on behalf of the ACLU,*fn3 but was paid a retainer as a legal consultant for the South Carolina Council on Human Relations (Council), a nonprofit organization with offices in Columbia.

During the summer of 1973, local and national newspapers reported that pregnant mothers on public assistance in Aiken County, S. C., were being sterilized or threatened with sterilization as a condition of the continued receipt of medical assistance under the Medicaid program.*fn4 Concerned by this development, Gary Allen, an Aiken businessman and officer of a local organization serving indigents, called the Council requesting that one of its representatives come to Aiken to address some of the women who had been sterilized. At the Council's behest, appellant, who had not known Allen previously, called him and arranged a meeting in his office in July 1973. Among those attending was Mary Etta Williams, who had been sterilized by Dr. Clovis H. Pierce after the birth of her third child. Williams and her grandmother attended the meeting because Allen, an old family friend, had invited

[ 436 U.S. Page 416]

     them and because Williams wanted "[to] see what it was all about . . . ." App. 41-42. At the meeting, appellant advised those present, including Williams and the other women who had been sterilized by Dr. Pierce, of their legal rights and suggested the possibility of a lawsuit.

Early in August 1973 the ACLU informed appellant that it was willing to provide representation for Aiken mothers who had been sterilized.*fn5 Appellant testified that after being advised by Allen that Williams wished to institute suit against Dr. Pierce, she decided to inform Williams of the ACLU's offer of free legal representation. Shortly after receiving appellant's letter, dated August 30, 1973*fn6 -- the centerpiece of this

[ 436 U.S. Page 417]

     litigation -- Williams visited Dr. Pierce to discuss the progress of her third child who was ill. At the doctor's office, she encountered his lawyer and at the latter's request signed a release of liability in the doctor's favor. Williams showed appellant's letter to the doctor and his lawyer, and they retained a copy. She then called appellant from the doctor's office and announced her intention not to sue. There was no further communication between appellant and Williams.

On October 9, 1974, the Secretary of the Board of Commissioners on Grievances and Discipline of the Supreme Court of South Carolina (Board) filed a formal complaint with the Board, charging that appellant had engaged in "solicitation in violation of the Canons of Ethics" by sending the August 30, 1973, letter to Williams. App. 1-2. Appellant denied any unethical solicitation and asserted, inter alia, that her conduct was protected by the First and Fourteenth Amendments and by Canon 2 of the Code of Professional Responsibility of the American Bar Association (ABA). The complaint was heard by a panel of the Board on March 20, 1975. The State's evidence consisted of the letter, the testimony of Williams,*fn7

[ 436 U.S. Page 418]

     and a copy of the summons and complaint in the action instituted against Dr. Pierce and various state officials, Walker v. Pierce, Civ. No. 74-475 (SC, July 28, 1975), aff'd in part and rev'd in part, 560 F.2d 609 (CA4 1977), cert. denied, 434 U.S. 1075 (1978).*fn8 Following denial of appellant's motion to dismiss, App. 77-82, she testified in her own behalf and called Allen, a number of ACLU representatives, and several character witnesses.*fn9

The panel filed a report recommending that appellant be found guilty of soliciting a client on behalf of the ACLU, in violation of Disciplinary Rules (DR) 2-103 (D)(5)(a) and (c)*fn10 and 2-104 (A)(5)*fn11 of the Supreme Court of South

[ 436 U.S. Page 419]

     Carolina,*fn12 and that a private reprimand be issued. It noted that "[the] evidence is inconclusive as to whether [appellant] solicited Mrs. Williams on her own behalf, but she did solicit

[ 436 U.S. Page 420]

     Mrs. Williams on behalf of the ACLU, which would benefit financially in the event of successful prosecution of the suit for money damages." The panel determined that appellant violated DR 2-103 (D)(5) "by attempting to solicit a client for a non-profit organization which, as its primary purpose, renders legal services, where respondent's associate is a

[ 436 U.S. Page 421]

     staff counsel for the non-profit organization." Appellant also was found to have violated DR 2-104 (A)(5) because she solicited Williams, after providing unsolicited legal advice, to join in a prospective class action for damages and other relief that was to be brought by the ACLU.

After a hearing on January 9, 1976, the full Board approved the panel report and administered a private reprimand. On March 17, 1977, the Supreme Court of South Carolina entered an order which adopted verbatim the findings and conclusions of the panel report and increased the sanction, sua sponte, to a public reprimand. 268 S. C. 259, 233 S. E. 2d 301.

On July 9, 1977, appellant filed a jurisdictional statement and this appeal was docketed. We noted probable jurisdiction on October 3, 1977, sub nom. In re Smith, 434 U.S. 814. We now reverse.

II

This appeal concerns the tension between contending values of considerable moment to the legal profession and to society. Relying upon NAACP v. Button, 371 U.S. 415 (1963), and its progeny, appellant maintains that her activity involved constitutionally protected expression and association. In her view, South Carolina has not shown that the discipline meted out to her advances a subordinating state interest in a manner that avoids unnecessary abridgment of First Amendment freedoms.*fn13 Appellee counters that appellant's letter to Williams falls outside of the protection of Button, and that

[ 436 U.S. Page 422]

     South Carolina acted lawfully in punishing a member of its Bar for solicitation.

The States enjoy broad power to regulate "the practice of professions within their boundaries," and "[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 U.S. 773, 792 (1975). For example, we decide today in Ohralik v. Ohio State Bar Assn., post, p. 447, that the States may vindicate legitimate regulatory interests through proscription, in certain circumstances, of in-person solicitation by lawyers who seek to communicate purely commercial offers of legal assistance to lay persons.

Unlike the situation in Ohralik, however, appellant's act of solicitation took the form of a letter to a woman with whom appellant had discussed the possibility of seeking redress for an allegedly unconstitutional sterilization. This was not in-person solicitation for pecuniary gain. Appellant was communicating an offer of free assistance by attorneys associated with the ACLU, not an offer predicated on entitlement to a share of any monetary recovery. And her 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 question presented in this case is whether, in light of the values protected by the First and Fourteenth Amendments, these differences materially affect the scope of state regulation of the conduct of lawyers.

III

In NAACP v. Button, supra, the Supreme Court of Appeals of Virginia had held that the activities of members and staff attorneys of the National Association for the Advancement of Colored People (NAACP) and its affiliate, the Virginia ...


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