436 U.S. 447, 460 (1978)
Appellant Albert Ohralik, a member of the Ohio Bar who lived in Montville, Ohio, and practiced in Montville and Cleveland, learned on February 13, 1974, while at the post office about an automobile accident that occurred on February 2 involving Carol McClintock, a young woman he knew casually.1 He telephoned her parents, who told him their daughter was in the hospital, and he suggested visiting her there after first stopping at their home, to which Mrs. McClintock agreed.2
During his visit to the McClintocks' home, they described how Carol had been driving when hit by an uninsured motorist, injuring both her and her passenger Wanda Lou Holbert.3 Appellant explained that Ohio's guest statute would prevent Holbert from suing the McClintocks.4 When he suggested they hire a lawyer, Mrs. McClintock said the decision was up to Carol, who was eighteen years old.5 Appellant then went to the hospital and found Carol in traction, where he offered to represent her and asked her to sign an agreement, but she said she needed to discuss it with her parents and asked him to bring them to see her.6
Appellant took photographs at the accident scene and obtained a tape recorder, which he concealed under his raincoat before returning to the McClintocks' residence.7 There he reviewed their insurance policy, explained the uninsured-motorist coverage that could provide up to $12,500 each for Carol and Wanda Lou, and learned that Carol had authorized him to proceed with her representation. Two days later he returned to the hospital to have Carol sign a contingent-fee contract providing him one-third of any recovery.8
Appellant visited Wanda Lou Holbert uninvited at her home the day after her release from the hospital, again concealing his tape recorder.9 He told her he represented Carol and offered her a "tip" about possible recovery under the McClintocks' uninsured-motorist clause, then offered to represent her for a one-third contingent fee, to which she responded "O. K." Wanda's mother repudiated the agreement the next day by telephone, and a month later Wanda confirmed in writing that she did not want to sue or be represented by appellant. Carol also eventually discharged him, though she paid him one-third of her settlement after he sued her for breach of contract.10
Both young women filed grievances with the Geauga County Bar Association, which referred the matter to appellee Ohio State Bar Association.11 After a hearing, the Board of Commissioners on Grievances and Discipline found that appellant had violated Disciplinary Rules 2-103(A) and 2-104(A) of the Ohio Code of Professional Responsibility and recommended a public reprimand.12 The Supreme Court of Ohio adopted the Board's findings, held that appellant's conduct was not constitutionally protected, and increased the sanction to indefinite suspension.13 The United States Supreme Court noted probable jurisdiction following its decision in Bates v. State Bar of Arizona.14
Whether a State may 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?15
A State may discipline a lawyer for in-person solicitation of remunerative employment under circumstances likely to pose dangers of overreaching, undue influence, invasion of privacy, or other vexatious conduct that the State has a legitimate interest in preventing.16 In-person solicitation receives a limited measure of First Amendment protection as commercial speech.17 It is subject to prophylactic regulation because it is a business transaction in which speech is subordinate.18 The State bears a special responsibility to maintain standards among licensed professionals.19
Yes. The established facts show that Albert Ohralik, an experienced Ohio lawyer, learned of the accident involving eighteen-year-old Carol McClintock and her passenger Wanda Lou Holbert and immediately telephoned the McClintock home to arrange a visit.20 During the home visit Ohralik learned of the uninsured-motorist coverage, proceeded to the hospital where Carol lay in traction, offered representation, and later returned with a concealed tape recorder to obtain her signature on a one-third contingent-fee contract.21 He then visited Wanda Lou uninvited the day after her hospital release, again concealing the recorder, offered her the same contingent-fee arrangement after giving her a tip about the insurance policy, and refused to withdraw when her mother repudiated the agreement the next day.22
These facts establish solicitation for pecuniary gain in circumstances inherently likely to produce overreaching and uninformed acquiescence.23 The Ohio rules therefore could be applied to Ohralik without offending the Constitution because the State need not prove actual injury when the conduct occurs under conditions the prophylactic rules were designed to prevent.24
A State constitutionally may discipline a lawyer for the in-person solicitation of clients for pecuniary gain under circumstances likely to pose dangers that the State has a right to prevent.25
Related opinions on this issue
Justice Marshall agreed that Ohralik could be disciplined because the circumstances presented classic examples of ambulance chasing with obvious potential for misrepresentation and overreaching.26 He emphasized that Ohralik approached two eighteen-year-old women shortly after a traumatic accident, one still in traction and the other just released, covertly recorded conversations without consent, and pursued Wanda Lou despite a potential conflict with his client Carol.27 Marshall stressed that the Court's holding is limited to solicitation under circumstances presenting substantial dangers of harm independent of the solicitation itself and joined the judgment on that narrow ground.28
Justice Rehnquist concurred in the affirmance of the judgment of the Supreme Court of Ohio for the reasons stated in his dissenting opinion in the companion case In re Primus.29 His concurrence in Ohralik reflects his view that the disciplinary measures imposed by the Ohio Supreme Court were appropriate given the nature of the solicitation involved.30 By aligning the outcome with his analysis in the related case, Rehnquist emphasized the distinction between protected and unprotected forms of attorney solicitation under the First Amendment.31
This position supports the application of state disciplinary rules to in-person solicitations that occur under circumstances presenting risks of overreaching and undue influence.32
Whether in-person solicitation of remunerative employment by a lawyer stands on a par with truthful advertising about the availability and terms of routine legal services for purposes of First Amendment protection?33
In-person solicitation of remunerative employment by a lawyer does not stand on a par with truthful advertising about the availability and terms of routine legal services.34 Although both involve commercial speech, in-person solicitation exerts pressure and demands an immediate response.35 It provides no opportunity for comparison or reflection.36 The conduct is not visible to public scrutiny, thereby justifying a lower level of constitutional protection and greater state regulatory authority.37
No. The established facts demonstrate that Ohralik's conduct differed markedly from the public advertisement at issue in Bates.38 Unlike a published notice that simply informs and leaves the recipient free to act or not, Ohralik's visits occurred in hospital rooms and immediately after release when the young women were physically and emotionally vulnerable, involved concealed recording devices, and pressed for immediate oral assent to contingent-fee agreements.39 These differences confirm that in-person solicitation receives less First Amendment protection than the restrained advertising approved in Bates and may be regulated prophylactically even without proof of actual harm.40
In-person solicitation of remunerative employment by a lawyer does not stand on a par with truthful advertising about the availability and terms of routine legal services for purposes of First Amendment protection.41
Related opinions on this issue
Justice Marshall expressed concern that the majority's suggestion of lesser protection for in-person solicitation than for Bates-style advertising could undervalue the substantial First Amendment informational interests served by solicitation.42 He noted that both advertising and solicitation can provide important information about legal rights and remedies.43 Marshall argued that any additional restrictions on solicitation must be justified only to the degree that actual dangers the State may prevent are presented by the attendant conduct.44
He emphasized that the First Amendment interests are substantial and entitled to as much protection as those in Bates.45