Ohralik v. Ohio State Bar (1978)

Ohralik v. Ohio State Bar, 436 U.S. 447 (1978).

The term “ambulance chaser” may not have originated with attorney Albert Ohralik, but he certainly made a fine example of the type: visiting a casual acquaintance, laid up with grievous injuries in the hospital and pressuring that person to hire Ohralik to pursue a personal injury claim.  In upholding Ohio’s restriction on in-person solicitation, the Supreme Court found that such restrictions were permissible when the unique persuasive pressures of in-person attorney communications involving “purely commercial offers of legal assistance to lay persons” are present.  As the court put it, such in-person solicitation is distinct from ordinary advertising in several important ways:

“Unlike 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. The aim and effect of in-person solicitation may be to provide a one-sided presentation and to encourage speedy and perhaps uninformed decisionmaking; there is no opportunity for intervention or counter-education by agencies of the Bar, supervisory authorities, or persons close to the solicited individual. . . . In-person solicitation is as likely as not to discourage persons needing counsel from engaging in a critical comparison of the “availability, nature, and prices” of legal services, cf. Bates, 433 U. S., at 364; it actually may disserve the individual and societal interest, identified in Bates, in facilitating “informed and reliable decision making.”  436 U.S., at 457-58.

Takeaway: Any form of direct solicitation that involves real-time discussion and pressure to choose counsel has the potential to be restricted by the bar.  In addition to in-person and telephonic communications, this may also extend to as-yet-undeveloped means of communicating with others in real time.  

However, as the court noted in Primus, solicitation that doesn’t have these real-time, decision pressure features cannot be lawfully prohibited.  

 

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