IN RE PRIMUS
No. 77-56
Supreme Court of the United States
Argued January 16, 1978—Decided May 30, 1978
436 U.S. 412
Ray P. McClain argued the cause for appellant. With him on the briefs were Joel M. Gora, Laughlin McDonald, Neil Bradley, and H. Christopher Coates.
Richard B. Kale, Jr., Assistant Attorney General of South
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,”1 and was an officer of and cooperating lawyer with the Columbia branch of the American Civil Liberties Union (ACLU).2 She re-
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.4 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
Early in August 1973 the ACLU informed appellant that it was willing to provide representation for Aiken mothers who had been sterilized.5 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, 19736—the centerpiece of this
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,7
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)10 and 2-104 (A) (5)11 of the Supreme Court of South
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.13 Appellee counters that appellant‘s letter to Williams falls outside of the protection of Button, and that
The States enjoy broad power to regulate “the practice of professions within their boundaries,” and “[t]he 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 State Conference of NAACP Branches (Conference), constituted
This Court reversed: “We hold that the activities of the NAACP, its affiliates and legal staff shown on this record are modes of expression and association protected by the First and Fourteenth Amendments which Virginia may not prohibit, under its power to regulate the legal profession, as improper solicitation of legal business violative of [state law] and the Canons of Professional Ethics.” 371 U. S., at 428-429. The solicitation of prospective litigants,14 many of whom were not
Since the Virginia statute sought to regulate expressive and associational conduct at the core of the First Amendment‘s protective ambit, the Button Court insisted that “government may regulate in the area only with narrow specificity.” 371 U. S., at 433. The Attorney General of Virginia had argued that the law merely (i) proscribed control of the actual litigation by the NAACP after it was instituted, ibid., and (ii) sought to prevent the evils traditionally associated with common-law maintenance, champerty, and barratry, id., at 438.15 The Court found inadequate the first justification because of an absence of evidence of NAACP interference with the actual conduct of litigation, or neglect or harassment of clients, and because the statute, as construed, was not drawn narrowly to advance the asserted goal. It rejected the analogy to the common-law offenses because of an absence of proof that malicious intent or the prospect of pecuniary gain inspired the NAACP-sponsored litigation. It also found a lack of proof that a serious danger of conflict of interest marked the relationship between the NAACP and its member and nonmember Negro litigants. The Court concluded that “although the [NAACP] has amply shown that its activities fall within the
IV
We turn now to the question whether appellant‘s conduct implicates interests of free expression and association sufficient to justify the level of protection recognized in Button and subsequent cases.17 The Supreme Court of South Carolina found appellant to have engaged in unethical conduct because
Although the disciplinary panel did not permit full factual development of the aims and practices of the ACLU, see n. 9, supra, the record does not support the state court‘s effort to draw a meaningful distinction between the ACLU and the NAACP. From all that appears, the ACLU and its local chapters, much like the NAACP and its local affiliates in Button, “[engage] in extensive educational and lobbying activities” and “also [devote] much of [their] funds and energies to an extensive program of assisting certain kinds of litigation on behalf of [their] declared purposes.” 371 U. S., at 419-420. See App. 177-178; n. 2, supra. The court below acknowledged that “the ACLU has only entered cases in which substantial civil liberties questions are involved ....” 268 S. C., at 263, 233 S. E. 2d, at 303. See Button, 371 U. S., at 440 n. 19. It has engaged in the defense of unpopular
We find equally unpersuasive any suggestion that the level of constitutional scrutiny in this case should be lowered because of a possible benefit to the ACLU. The discipline administered to appellant was premised solely on the possibility of financial benefit to the organization, rather than any possibility of pecuniary gain to herself, her associates, or the lawyers representing the plaintiffs in the Walker v. Pierce litigation.21 It is conceded that appellant received no com-
Contrary to appellee‘s suggestion, the ACLU‘s policy of requesting an award of counsel fees does not take this case outside of the protection of Button. Although the Court in Button did not consider whether the NAACP seeks counsel fees, such requests are often made both by that organization, see, e. g., NAACP v. Allen, 493 F. 2d 614, 622 (CA5 1974); Boston Chapter, NAACP, Inc. v. Beecher, 371 F. Supp. 507, 523 (Mass.), aff‘d, 504 F. 2d 1017 (CA1 1974), cert. denied, 421 U. S. 910 (1975), and by the NAACP Legal Defense Fund, Inc., see, e. g., Bradley v. Richmond School Board, 416 U. S. 696 (1974); Reynolds v. Coomey, 567 F. 2d 1166, 1167 (CA1 1978). In any event, in a case of this kind there are differences between counsel fees awarded by a court and traditional fee-paying arrangements which militate against a presumption
Appellant‘s letter of August 30, 1973, to Mrs. Williams thus comes within the generous zone of First Amendment protection reserved for associational freedoms. The ACLU engages in litigation as a vehicle for effective political expression and association, as well as a means of communicating useful information to the public. See n. 32, infra; cf. Bates v. State Bar of Arizona, 433 U. S., at 364; Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748, 779-780 (1976) (STEWART, J., concurring). As Button indicates, and as appellant offered to prove at the disciplinary hearing, see n. 9, supra, the efficacy of litigation as a means of advancing the cause of civil liberties often depends on the ability to make legal assistance available to suitable litigants.
V
South Carolina‘s action in punishing appellant for soliciting a prospective litigant by mail, on behalf of the ACLU, must withstand the “exacting scrutiny applicable to limitations on core First Amendment rights . . . .” Buckley v. Valeo, 424 U. S. 1, 44-45 (1976). South Carolina must demonstrate “a subordinating interest which is compelling,” Bates v. Little Rock, 361 U. S. 516, 524 (1960), and that the means employed in furtherance of that interest are “closely drawn to avoid unnecessary abridgment of associational freedoms.” Buckley, supra, at 25.
Appellee contends that the disciplinary action taken in this case is part of a regulatory program aimed at the prevention of undue influence, overreaching, misrepresentation, invasion of privacy, conflict of interest, lay interference, and other evils that are thought to inhere generally in solicitation by lawyers of prospective clients, and to be present on the record before us. Brief for Appellee 37-49. We do not dispute the importance of these interests. This Court‘s decision in Button makes clear, however, that “[b]road prophylactic rules in the area of free expression are suspect,” and that “[p]recision of regulation must be the touchstone in an area so closely touching our most precious freedoms.” 371 U. S., at 438; see Mine Workers v. Illinois Bar Assn., 389 U. S., at 222-223. Because of the danger of censorship through selective enforcement of broad prohibitions, and “[b]ecause First Amendment freedoms need breathing space to survive, gov
A
The Disciplinary Rules in question sweep broadly. Under DR 2-103 (D) (5), a lawyer employed by the ACLU or a similar organization may never give unsolicited advice to a lay person that he retain the organization‘s free services, and it would seem that one who merely assists or maintains a cooperative relationship with the organization also must suppress the giving of such advice if he or anyone associated with the organization will be involved in the ultimate litigation. See Tr. of Oral Arg. 32-34. Notwithstanding appellee‘s concession in this Court, it is far from clear that a lawyer may communicate the organization‘s offer of legal assistance at an informational gathering such as the July 1973 meeting in Aiken without breaching the literal terms of the Rule. Cf. Memorandum of Complainant, Apr. 8, 1975, p. 9.26
Moreover, the Disciplinary Rules in question permit punishment for mere solicitation unaccompanied by proof of any of the substantive evils that appellee maintains were present in this case. In sum, the Rules in their present form have a distinct potential for dampening the kind of “cooperative activity that would make advocacy of litigation meaningful,” Button, supra, at 438, as well as for permitting discretionary enforcement against unpopular causes.
B
Even if we ignore the breadth of the Disciplinary Rules and the absence of findings in the decision below that support
Where political expression or association is at issue, this Court has not tolerated the degree of imprecision that often characterizes government regulation of the conduct of commercial affairs. The approach we adopt today in Ohralik, post, p. 447, that the State may proscribe in-person solicitation for pecuniary gain under circumstances likely to result in adverse consequences, cannot be applied to appellant‘s activity on behalf of the ACLU. Although a showing of potential danger may suffice in the former context, appellant may not be disciplined unless her activity in fact involved the type of misconduct at which South Carolina‘s broad prohibition is said to be directed.
The record does not support appellee‘s contention that
Nor does the record permit a finding of a serious likelihood of conflict of interest or injurious lay interference with the attorney-client relationship. Admittedly, there is some potential for such conflict or interference whenever a lay organization supports any litigation. That potential was present in Button, in the NAACP‘s solicitation of nonmembers and its disavowal of any relief short of full integration, see 371 U. S., at 420; id., at 460, 465 (Harlan, J., dissenting). But the Court found that potential insufficient in the absence of proof of a “serious danger” of conflict of interest, id., at 443, or of organizational interference with the actual conduct of the litigation, id., at 433, 444. As in Button, “[n]othing that this record shows as to the nature and purpose of [ACLU] activities permits an inference of any injurious intervention in or control of litigation which would constitutionally authorize the application,” id., at 444, of the Disciplinary Rules to appellant‘s activity.29 A “very distant possibility of harm,” Mine Workers v. Illinois Bar Assn., 389 U. S., at 223, cannot justify proscription of the activity of appellant revealed by this record. See id., at 223-224.30
The State‘s interests in preventing the “stirring up” of frivolous or vexatious litigation and minimizing commerciali
At bottom, the case against appellant rests on the proposition that a State may regulate in a prophylactic fashion all solicitation activities of lawyers because there may be some potential for overreaching, conflict of interest, or other substantive evils whenever a lawyer gives unsolicited advice and communicates an offer of representation to a layman. Under certain circumstances, that approach is appropriate in the case of speech that simply “propose[s] a commercial transaction,” Pittsburgh Press Co. v. Human Relations Comm‘n, 413 U. S. 376, 385 (1973). See Ohralik, post, at 455-459. In the con
VI
The State is free to fashion reasonable restrictions with respect to the time, place, and manner of solicitation by members of its Bar. See Bates v. State Bar of Arizona, 433 U. S., at 384; Virginia Pharmacy Board v. Virginia Consumer Council, 425 U. S., at 771, and cases cited therein. The State‘s special interest in regulating members of a profession it licenses, and who serve as officers of its courts, amply justifies the application of narrowly drawn rules to proscribe solicitation that in fact is misleading, overbearing, or involves other features of deception or improper influence.33 As we decide today in
We conclude that South Carolina‘s application of DR 2-103 (D) (5) (a) and (c) and 2-104 (A) (5) to appellant‘s solicitation by letter on behalf of the ACLU violates the
Reversed.
MR. JUSTICE BRENNAN took no part in the consideration or decision of this case.
[For opinion of MR. JUSTICE MARSHALL, concurring in part and concurring in the judgment, see post, p. 468.]
MR. JUSTICE BLACKMUN, concurring.
Although I join the opinion of the Court, my understanding of the first paragraph of Part VI requires further explanation. The dicta contained in that paragraph are unnecessary to the decision of this case and its
“We have no occasion here to delineate the precise contours of permissible state regulation. Thus, for example, a different situation might be presented if an innocent or merely negligent misstatement were made by a lawyer on behalf of an organization engaged in furthering associational or political interests.”
It may well be that the State is able to proscribe such solicitation. The resolution of that issue, however, requires a balancing of the State‘s interests against the important
MR. JUSTICE REHNQUIST, dissenting.
In this case and the companion case of Ohralik v. Ohio State Bar Assn., post, p. 447, the Court tells its own tale of two lawyers: One tale ends happily for the lawyer and one does not. If we were given the latitude of novelists in deciding between happy and unhappy endings for the heroes and villains of our tales, I might well join in the Court‘s disposition of both cases. But under our federal system it is for the States to decide which lawyers shall be admitted to the Bar and remain there; this Court may interfere only if the State‘s decision is rendered impermissible by the
This Court said in United Transportation Union v. Michigan Bar, 401 U. S. 576, 585 (1971): “The common thread running through our decisions in NAACP v. Button, [371 U. S. 415 (1963)], Trainmen [v. Virginia Bar, 377 U. S. 1 (1964)], and United Mine Workers [v. Illinois Bar Assn., 389 U. S. 217 (1967)], is that collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the
Neither Button nor any other decision of this Court compels a State to permit an attorney to engage in uninvited solicitation on an individual basis. Further, I agree with the Court‘s statement in the companion case that the State has a strong interest in forestalling the evils that result “when a lawyer, a professional trained in the art of persuasion, personally solicits an unsophisticated, injured, or distressed lay person.” Ohralik, post, at 465. The reversal of the judgment of the Supreme Court of South Carolina thus seems to me quite unsupported by previous decisions or by any principle which may be abstracted from them.
In distinguishing between Primus’ protected solicitation and Ohralik‘s unprotected solicitation, the Court lamely declares: “We have not discarded the ‘common-sense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.” Post, at 455-456. Yet to the extent that this “common-sense” distinction focuses on the content of the speech, it is at least suspect under many of
This absence of any principled distinction between the two cases is made all the more unfortunate by the radical difference in scrutiny brought to bear upon state regulation in each area. Where solicitation proposes merely a commercial transaction, the Court recognizes “the need for prophylactic regulation in furtherance of the State‘s interest in protecting the lay public.” Ohralik, post, at 468. On the other hand, in some circumstances (at least in those identical to the instant case)1 “[w]here political expression or association is at
I do not believe that any State will be able to determine with confidence the area in which it may regulate prophylactically and the area in which it may regulate only upon a specific showing of harm. Despite the Court‘s assertion to the contrary, ante, at 438 n. 32, the difficulty of drawing distinctions on the basis of the content of the speech or the motive of the speaker is a valid reason for avoiding the undertaking where a more objective standard is readily available. I believe that constitutional inquiry must focus on the character of the conduct which the State seeks to regulate, and not on the motives of the individual lawyers or the nature of the particular litigation involved. The State is empowered to discipline for conduct which it deems detrimental to the public interest unless foreclosed from doing so by our cases construing the
In Button this Court recognized the right of the National Association for the Advancement of Colored People to engage in collective activity, including the solicitation of potential plaintiffs from outside its ranks, for the purpose of instituting and maintaining litigation to achieve the desegregation of public schools. The NAACP utilized letters, bulletins, and petition drives, 371 U. S., at 422, apparently directed toward both members and nonmembers of the organization, id., at 433,2 to organize public meetings for the purpose of soliciting
“Typically, a local NAACP branch will invite a member of the legal staff to explain to a meeting of parents and children the legal steps necessary to achieve desegregation. The staff member will bring printed forms to the meeting, authorizing him, and other NAACP or Defense Fund attorneys of his designation, to represent the signers in legal proceedings to achieve desegregation.” Id., at 421.
The Court held that the organization could not be punished by the Commonwealth of Virginia for solicitation on the basis of its role in instituting desegregation litigation.3
Here, South Carolina has not attempted to punish the ACLU or any laymen associated with it. Gary Allen, who was the instigator of the effort to sue Dr. Pierce, remains as free as before to solicit potential plaintiffs for future litigation. Likewise, Primus remains as free as before to address gatherings of the sort described in Button to advise potential plaintiffs of their legal rights. Primus’ first contact with Williams took place at such a gathering, and South Carolina, evidently in response to Button, has not attempted to disci
As the Court understands the Disciplinary Rule enforced by South Carolina, “a lawyer employed by the ACLU or a similar organization may never give unsolicited advice to a lay person that he or she retain the organization‘s free services.” Ante, at 433. That prohibition seems to me entirely reasonable. A State may rightly fear that members of its Bar have powers of persuasion not possessed by laymen, see Ohralik, post, at 464-465, and it may also fear that such persuasion may be as potent in writing as it is in person. Such persuasion may draw an unsophisticated layman into litigation contrary to his own best interests, compare ante, at 434-438, with Ohralik, post, at 464-467, and it may force other citizens of South Carolina to defend against baseless litigation which would not otherwise have been brought. I cannot agree that a State must prove such harmful consequences in each case simply because an organization such as the ACLU or the NAACP is involved.
I cannot share the Court‘s confidence that the danger of such consequences is minimized simply because a lawyer proceeds from political conviction rather than for pecuniary gain. A State may reasonably fear that a lawyer‘s desire to resolve “substantial civil liberties questions,” 268 S. C. 259, 263, 233 S. E. 2d 301, 303 (1977), may occasionally take precedence over his duty to advance the interests of his client. It is even more reasonable to fear that a lawyer in such circumstances will be inclined to pursue both culpable and blameless defendants to the last ditch in order to achieve his
I can only conclude that the discipline imposed upon Primus does not violate the Constitution, and I would affirm the judgment of the Supreme Court of South Carolina.
Notes
August 30, 1973
Mrs. Marietta Williams
347 Sumter Street
Aiken, South Carolina 29801
Dear Mrs. Williams:
You will probably remember me from talking with you at Mr. Allen‘s office in July about the sterilization performed on you. The American Civil Liberties Union would like to file a lawsuit on your behalf for money against the doctor who performed the operation. We will be coming to Aiken in the near future and would like to explain what is involved so you can understand what is going on.
Now I have a question to ask of you. Would you object to talking to a women‘s magazine about the situation in Aiken? The magazine is doing a feature story on the whole sterilization problem and wants to talk to you and others in South Carolina. If you don‘t mind doing this, call me collect at 254-8151 on Friday before 5:00, if you receive this letter in time. Or call me on Tuesday morning (after Labor Day) collect.
I want to assure you that this interview is being done to show what is happening to women against their wishes, and is not being done to harm you in any way. But I want you to decide, so call me collect and let me know of your decision. This practice must stop.
About the lawsuit, if you are interested, let me know, and I‘ll let you know when we will come down to talk to you about it. We will be coming to talk to Mrs. Waters at the same time; she has already asked the American Civil Liberties Union to file a suit on her behalf.
Sincerely,
s/ Edna Smith
Edna Smith
Attorney-at-law
Bagby, one of appellant‘s associates in the Carolina Community Law Firm and fellow cooperating lawyer with the ACLU, was one of several attorneys of record for the plaintiffs. Buhl, another of appellant‘s associates and a staff counsel for the ACLU in South Carolina, also may have represented one of the women.
“(D) A lawyer shall not knowingly assist a person or organization that recommends, furnishes, or pays for legal services to promote the use of his services or those of his partners or associates. However, he may cooperate in a dignified manner with the legal service activities of any of the following, provided that his independent professional judgment is exercised in behalf of his client without interference or control by any organization or other person:
“(1) A legal aid office or public defender office:
“(a) Operated or sponsored by a duly accredited law school.
“(b) Operated or sponsored by a bona fide non-profit community organization.
“(c) Operated or sponsored by a governmental agency.
“(d) Operated, sponsored, or approved by a bar association representative of the general bar of the geographical area in which the association exists.
“(2) A military legal assistance office.
“(3) A lawyer referral service operated, sponsored, or approved by a bar association representative of the general bar of the geographical area in which the association exists.
“(4) A bar association representative of the general bar of the geographical area in which the association exists.
“(5) Any other non-profit organization that recommends, furnishes, or pays for legal services to its members or beneficiaries, but only in those instances and to the extent that controlling constitutional interpretation at the time of the rendition of the services requires the allowance of such legal service activities, and only if the following conditions, unless prohibited by such interpretation, are met:
“(a) The primary purposes of such organization do not include the rendition of legal services.
“(b) The recommending, furnishing, or paying for legal services to its members is incidental and reasonably related to the primary purposes of such organization.
“(c) Such organization does not derive a financial benefit from the rendition of legal services by the lawyer.
“(d) The member or beneficiary for whom the legal services are rendered, and not such organization, is recognized as the client of the lawyer in that matter.”
“(A) A lawyer who has given unsolicited advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice, except that:
“(1) A lawyer may accept employment by a close friend, relative, former client (if the advice is germane to the former employment), or one whom the lawyer reasonably believes to be a client.
“(2) A lawyer may accept employment that results from his participation in activities designed to educate laymen to recognize legal problems, to make intelligent selection of counsel, or to utilize available legal services if such activities are conducted or sponsored by any of the offices or organizations enumerated in DR 2-103 (D) (1) through (5), to the extent and under the conditions prescribed therein.
“(3) A lawyer who is furnished or paid by any of the offices or organizations enumerated in DR 2-103 (D) (1), (2), or (5) may represent a member or beneficiary thereof to the extent and under the conditions prescribed therein.
“(4) Without affecting his right to accept employment, a lawyer may speak publicly or write for publication on legal topics so long as he does not emphasize his own professional experience or reputation and does not undertake to give individual advice.
“(5) If success in asserting rights or defenses of his client in litigation in the nature of a class action is dependent upon the joinder of others, a lawyer may accept, but shall not seek, employment from those contacted for the purpose of obtaining their joinder.”
“Typically, a local NAACP branch will invite a member of the legal staff to explain to a meeting of parents and children the legal steps necessary to achieve desegregation. The staff member will bring printed forms to the meeting authorizing him, and other NAACP or [NAACP Legal] Defense Fund attorneys of his designation, to represent the signers in legal proceedings to achieve desegregation. On occasion, blank forms have been signed by litigants, upon the understanding that a member or members of the legal staff, with or without assistance from other NAACP lawyers, or from the Defense Fund, would handle the case. It is usual after obtaining authorizations, for the staff lawyer to bring into the case the other staff members in the area where suit is to be brought, and sometimes to bring in lawyers from the national organization or the Defense Fund. In effect, then, the prospective litigant retains not so much a particular attorney as the firm of NAACP and Defense Fund lawyers ....”
“These meetings are sometimes prompted by letters and bulletins from the Conference urging active steps to fight segregation. The Conference has on occasion distributed to the local branches petitions for desegregation to be signed by parents and filed with local school boards, and advised branch officials to obtain, as petitioners, persons willing to ‘go all the way’ in any possible litigation that may ensue.” 371 U. S., at 421-422.
The dissent of MR. JUSTICE REHNQUIST suggests that Button is distinguishable from this case because there “lawyers played only a limited role” in the solicitation of prospective litigants, and “the Commonwealth did not attempt to discipline the individual lawyers....” Post, at 444, and n. 3. We do not think that Button can be read in this way. As the Button Court recognized, see n. 14, supra, and as the Virginia Supreme Court of Appeals had found, NAACP v. Harrison, 202 Va. 142, 154-155, 116 S. E. 2d 55, 65 (1960), NAACP staff attorneys were involved in the actual solicitation efforts. The absence of discipline in Button was not due to an absence of lawyer involvement in solicitation. Indeed, from all that appears, no one was disciplined; the case came to this Court in the posture of an anticipatory action for declaratory relief. The state court‘s decree made quite clear that “the solicitation of legal business by ... [NAACP] attorneys, as shown by the evidence,” and the acceptance of such solicited employment by NAACP-compensated attorneys, violated the state ban and the canons of ethics. Id., at 164, 116 S. E. 2d, at 72. We therefore cannot view as dicta Button‘s holding that “the activities of the NAACP ... legal staff shown on this record are modes of expression and association protected by the First and Fourteenth Amendments which Virginia may not prohibit, under its power to regulate the legal profession, as improper solicitation of legal business ....” 371 U. S., at 428-429.
“Under no circumstances may any cooperating attorney associated in any way with an ACLU or affiliate case receive payment for services rendered in such a case, whether as a fee or voluntary donation. The smallest exception to this rule would jeopardize the voluntary nature of the cooperating system and the effectiveness of ACLU‘s entire legal program.”
Apparently it was feared that allowing acceptance of such fees might lead to selection of clients and cases for pecuniary reasons. See App. 182.
This policy was changed in 1977 to permit local experimentation with the sharing of court-awarded fees between state affiliates and cooperating attorneys. The South Carolina chapter has not exercised that option. Reply Brief for Appellant 5-6. We express no opinion whether our analysis in this case would be different had the latter policy been in effect during the period in question.