Ethics Opinion Articles - NC State Bar Journal

Still Odious After All These Years

By Alice Neece Mine

It doesn’t get more distasteful than this: In February 1974, Lawyer Ohralik, a member of the Ohio State Bar, learned that two young women, Carol and Wanda, had been injured in an automobile accident.1 After a brief visit to Carol’s parents, Ohralik went to the hospital room where eighteen-year-old Carol was lying in traction. He waited for the opportunity to speak to Carol alone and then asked her to sign a representation agreement. She did not sign but Ohralik stayed long enough to take photos of her in her hospital bed. Two days later, he returned to the hospital room and Carol signed a contingent fee agreement for one-third of the recovery. When the resourceful lawyer went to Wanda’s home uninvited, he arrived with a tape recorder concealed under his raincoat. In response to his questions about whether she planned to file a claim, the high school student told Ohralik that she really did not understand what was going on. Ohralik offered to represent her and Wanda said, “O.K.”

Both young women ultimately discharged Ohralik. Wanda’s mother attempted to do it the next day. Despite his discharge, Carol paid the lawyer one-third of her recovery after he sued her for breach of contract.

Although the opinion is over 25 years old, the circumstances that led the Ohio State Bar to discipline Lawyer Ohralik still leave a bad taste in the mouth. Perhaps because the facts were so outrageous, the Supreme Court made it very clear in its opinion that the state may constitutionally adopt a prophylactic rule prohibiting the solicitation of clients in person for pecuniary gain and, without proving actual injury to the persons so solicited, discipline a lawyer for violating the rule. The opinion observes that “[t]he state interests implicated in this case are particularly strong….The substantive evils of solicitation …[include]: stirring up litigation, assertion of fraudulent claims, debasing the legal profession, and potential harm to the solicited client in the form of overreaching, overcharging, underrepresentation, and misrepresentation.” In upholding a categorical ban on communication by in-person solicitation, the Court found that

[u]nlike a public advertisement, which simply provides information and leaves the recipient free to act upon it or not, in-person solicitation may exert pressure and often demands an immediate response, without providing an opportunity for comparison or reflection….[T]here is no opportunity for intervention or counter-education by agencies of the Bar, supervisory authorities, or persons close to the solicited individual.

The prohibition on in-person solicitation by lawyers predates Ohralik v. Ohio State Bar Assn. and it remains in effect in virtually every state. In North Carolina, the prohibition is found in subsection (a) of North Carolina Rule of Professional Conduct 7.3: “A lawyer shall not by in-person, live telephone, or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain….” The comment to the rule adds,

[t]hese forms of contact between a lawyer and a prospective client subject the layperson to the private importuning of the trained advocate in a direct interpersonal encounter. The prospective client, who may already feel overwhelmed by the circumstances giving rise to the need for legal services, may find it difficult fully to evaluate all available alternatives with reasoned judgment and appropriate self-interest in the face of the lawyer’s presence and insistence upon being retained immediately. The situation is fraught with the possibility of undue influence, intimidation, and over-reaching.

Rule 7.3, cmt. [1]. The rule makes no distinction between the Ohralik breed of solicitation that smacks of vulgar hucksterism and the more genteel solicitation of business clients on the country club greens: it is all improper.

Yet despite the longevity and notoriety of the prohibition, the Bar regularly receives reports of lawyers who, uninvited, call or visit people who have a legal matter and may need a lawyer. These reports usually come to us second-hand from another lawyer whose regular client indignantly mentioned that “some lawyer called me the other night and said he wanted to represent me on this traffic ticket (car accident, malpractice claim, etc.).” The client rarely remembers the name of the lawyer who called but the client’s outrage at the audacity of the lawyer, and perhaps at the profession as a whole, will be remembered.

A member of the State Bar Council recently called me to report that he had heard of several incidents of in-person solicitation in his community. The councilor actually prefaced our conversation by asking whether the Bar had repealed the prohibition while he wasn’t looking. We speculated on the reasons for the continued persistence—if not increase—in incidents of in-person and telephone solicitation. He suggested that younger lawyers, having come to the bar in the era of legal advertising and direct mail letters, may be ignorant of the prohibition. If so, perhaps this article will do a little good. So, regardless of whether it occurs in the hospital room, outside a gutted chicken processing plant, or in a casual call to a potential client’s home, and regardless of whether the lawyer makes the contact or sends an intermediary, in-person solicitation of clients for a lawyer’s financial gain is harmful to the interests of the public and the profession, and it remains strictly prohibited.

Endnotes

1. Ohralik v. Ohio State Bar Assn., 436 U.S. 447, reh’g denied, 439 U.S. 883 (1978). This description is taken from the facts as set forth in the opinion.

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