legal ethics

After admission to the bar in 1972, appellants worked as attorneys with the Maricopa County Legal Aid Society. In March 1974, they left the Society and opened a law office in Phoenix that they called a legal clinic. Their aim was to provide legal services at modest fees to persons of moderate income who did not qualify for governmental legal aid by accepting only routine matters such as uncontested divorces, uncontested adoptions, simple personal bankruptcies, and changes of name. To keep costs down, they relied on extensive use of paralegals, automatic typewriting equipment, and standardized forms and office procedures. After conducting their practice in this manner for two years, they concluded that advertising, and in particular the advertising of fees, was necessary to generate the volume of business required for the clinic to survive. On February 22, 1976, they placed an advertisement in the Arizona Republic, a daily newspaper of general circulation in the Phoenix metropolitan area. The advertisement stated that appellants were offering legal services at very reasonable fees. It listed exact prices for the services, including $175 plus a $20 filing fee for an uncontested divorce or legal separation, $225 plus a $20 filing fee for an uncontested adoption, $250 plus a $55 filing fee for a non-business bankruptcy, and $95 plus a $20 filing fee for a change of name, with personal injury cases handled on a contingent fee basis. Upon the filing of a complaint initiated by the president of the State Bar, a hearing was held before a three-member Special Local Administrative Committee. The committee recommended that each of the appellants be suspended from the practice of law for not less than six months. Upon further review by the Board of Governors of the State Bar, the Board recommended only a one-week suspension for each appellant, the weeks to run consecutively. Appellants sought review in the Supreme Court of Arizona. The court rejected both their Sherman Act and First Amendment claims, concluded that the conduct violated the disciplinary rule, and imposed a sanction of censure. Appellants then appealed to this Court, which noted probable jurisdiction.

Jose Padilla, a native of Honduras, has been a lawful permanent resident of the United States for more than forty years and served in the U.S. Armed Forces during the Vietnam War. He faced criminal charges in Kentucky after being arrested for transporting a large amount of marijuana in his tractor-trailer. Before entering a guilty plea to the drug distribution charges, Padilla's counsel did not advise him that the conviction would trigger deportation proceedings. Counsel instead told him that he did not have to worry about his immigration status because he had lived in the country so long. Padilla relied on that advice when he pleaded guilty and later alleged that he would have insisted on going to trial if he had received accurate information. In postconviction proceedings Padilla claimed that his attorney's erroneous advice about deportation constituted ineffective assistance. The Supreme Court of Kentucky denied relief without holding an evidentiary hearing, treating deportation as a collateral consequence outside the protection of the Sixth Amendment. The United States Supreme Court granted certiorari to review whether federal law imposed on counsel an obligation to advise Padilla that his guilty plea would result in removal from the country.

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. 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. 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. Appellant explained that Ohio's guest statute would prevent Holbert from suing the McClintocks. When he suggested they hire a lawyer, Mrs. McClintock said the decision was up to Carol, who was eighteen years old. 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. Appellant took photographs at the accident scene and obtained a tape recorder, which he concealed under his raincoat before returning to the McClintocks' residence. 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. Appellant visited Wanda Lou Holbert uninvited at her home the day after her release from the hospital, again concealing his tape recorder. 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. Both young women filed grievances with the Geauga County Bar Association, which referred the matter to appellee Ohio State Bar Association. 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. 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. The United States Supreme Court noted probable jurisdiction following its decision in Bates v. State Bar of Arizona.

In late 1981, Philip Q. Zauderer, an attorney practicing in Columbus, Ohio, placed a small advertisement in the Columbus Citizen Journal offering to represent defendants in drunken driving cases with a full legal fee refund if convicted of drunk driving. Charles Kettlewell, an attorney employed by the Office of Disciplinary Counsel of the Supreme Court of Ohio, telephoned Zauderer the second day the advertisement ran and informed him that it appeared to offer representation on a contingent-fee basis in a criminal case. Zauderer immediately withdrew the advertisement and wrote Kettlewell that he would decline any employment resulting from it. In the spring of 1982, Zauderer placed a larger advertisement in thirty-six Ohio newspapers. The advertisement featured a line drawing of the Dalkon Shield accompanied by the question "DID YOU USE THIS IUD?" It described alleged injuries including pelvic infections resulting in hospitalizations, tubal damage, infertility, and hysterectomies. It also described unplanned pregnancies ending in abortions, miscarriages, septic abortions, tubal or ectopic pregnancies, and full-term deliveries. The advertisement stated that the firm was presently representing women on such cases on a contingent fee basis of the amount recovered and that if there is no recovery, no legal fees are owed by clients. The advertisement attracted well over two hundred inquiries and led Zauderer to initiate lawsuits on behalf of one hundred six women. On July 29, 1982, the Office of Disciplinary Counsel filed a complaint against Zauderer alleging violations of several Ohio Disciplinary Rules arising from both advertisements. With respect to the Dalkon Shield advertisement, the Office of Disciplinary Counsel stipulated that the information and advice regarding Dalkon Shield litigation was not false, fraudulent, misleading, or deceptive and that the drawing was an accurate representation of the Dalkon Shield. The complaint charged that the advertisement violated rules prohibiting illustrations, self-recommendation, accepting employment from unsolicited advice, and failing to disclose client liability for costs. A panel of the Board of Commissioners on Grievances and Discipline heard the charges and found that Zauderer had violated multiple Disciplinary Rules. The Board of Commissioners adopted the panel's findings but recommended indefinite suspension rather than the public reprimand proposed by the panel. The Supreme Court of Ohio adopted the Board's findings that appellant's advertisements had violated the Disciplinary Rules specified by the hearing panel and concluded that appellant's conduct warranted a public reprimand. Zauderer appealed to the United States Supreme Court. He contended that the Ohio rules violated the First Amendment as applied to the Dalkon Shield advertisement. He also claimed that the manner of discipline for the drunken driving advertisement violated due process. The Court noted probable jurisdiction in 1984.