Attorney Solicitation: The Scope of State Regulation After primus and Ohralik

The purpose of this article is to analyze the opinions in Primus and Ohralik, to delineate the scope of permissible state regulation in the wake of those two decisions, and to recommend specific changes in existing state solicitation rules. Part I examines the general nature of attorney solicitation law – by whom it is made and how it is enforced. Part II describes the statutory and constitutional aspects of solicitation law prior to Primus and Ohralik. Part III discusses the Court’s holdings in Primus and Ohralik, and the changes in current statutory schemes required by the two decisions. Part IV considers whether the commercial/noncommercial distinction drawn by the court in Primus and Ohralik furnishes a useful or desirable basis for state regulation of attorney solicitation. Finally, Part V provides a brief treatment of the arguments for and against liberalized attorney solicitation rules, and contains specific proposals for liberalization of current state solicitation rules. The article concludes that the commercial/noncommercial distinction should not be used as a basis for state solicitation laws, that all attorneys should have the same freedom to solicit, and that both attorneys and laymen would benefit from carefully drawn liberal rules designed to prevent the legitimate dangers of attorney solicitation.