The decision in Primus was issued the same day as Ohralik, and the twin cases offer an excellent view of the contours of acceptable regulation of attorney solicitation. Primus had two significant features distinguishing it from Ohralik: it involved written, not in-person, solicitation, and the defendant was communicating an offer of pro bono assistance by lawyers associated with the ACLU.
In striking down the ruling of the South Carolina attorney disciplinary board, the court found that the written solicitation in question had none of the dangers of pressure and undue influence inherent in in-person solicitation. Furthermore, the court noted, because the solicitation involved matters of political expression and association – and not pecuniary gain – any attempt to regulate it would be subject to strict scrutiny rather than the lesser standard applicable to commercial speech.
Takeaway: Written solicitation has none of the dangers associated with having a living, breathing attorney pressuring someone to sign a fee agreement. And some forms of written solicitation – particularly those having to do with associational freedoms – are beyond attorney advertising regulation entirely.
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