author:
PER CURIAM:
      MR. JUSTICE KLUCZYNSKI,

text:
    (No. 51694.
    GENARO LARA, Petitioner, v. JOSEPH SCHNEIDER, Judge, et al, Respondents.

      Order entered February 21, 1979.

    KLUCZYNSKI and CLARK, JJ., dissenting.
    Jenner & Block (Jayne W. Barnard, of counsel), of Chicago, for petitioner.
    Foran, Wiss & Schultz, of Chicago, for respondents Michael E. Lavelle, Marie H. Suthers,- and Howard C. Medley, Sr.
    Andrew M. Raucci, of Chicago, for respondent Denise A. Arens.
   PER CURIAM:

Pursuant to our Rule 381 (58 Ill. 2d R. 381), Genaro Lara filed with this court on February 15 a motion and supporting suggestions seeking leave to file his proposed petition for a writ of mandamus to compel respondent Judge Joseph Schneider, a judge of the circuit court of Cook County, to reverse the decision of the municipal officers electoral board in cause No. 79—EBA—16 and to order petitioner’s name to appear on the ballot for the February 27, 1979, election for the office of alderman in the 22d ward of the city of Chicago.

After considering the motion, proposed petition and supporting suggestions, the court requested responses thereto by the respondent municipal officers electoral board, and Denise A. Arens, the objector before the board to petitioner’s nominating papers.

The court has concluded that, in the circumstances of this case, mandamus is not an appropriate remedy. Unlike the petitioner who was precluded by the shortage of time from seeking trial court relief in Dooley v. McGillicudy (1976), 63 Ill. 2d 54, relied on by Lara, petitioner here had time to and did seek review of the electoral board action in the circuit court of Cook County, and a final and appealable judgment was entered by that court on February 13, 1979. Mandamus is, of course, not a permissible substitute for direct appeal. (People ex rel. Bradley v. McAuliffe (1962), 24 Ill. 2d 75, 78; People ex rel. Adamowski v. Dougherty (1960), 19 Ill. 2d 393, 400; People ex rel. Furlong v. Board of Election Commissioners (1949), 404 Ill. 326, 330; People ex rel. Barrett v. Shurtleff (1933), 353 Ill. 248, 259.) Equally summary action from this court was available to petitioner by filing a notice of appeal to the appellate court and simultaneously requesting us to transfer that appeal to this court pursuant to our Rule 302(b) (58 Ill. 2d R. 302(b)) and expedite its hearing and disposition.

The motion for leave to file an original mandamus action is accordingly denied.

Motion denied.

MR. JUSTICE KLUCZYNSKI,

dissenting:

The order of this court denies Lara’s application for relief on the ground that mandamus is not a substitute for direct review and that, instead, Lara should have sought a direct appeal to this court under Rule 302(b) (58 Ill. 2d R. 302(b)). The court’s order violates the long-established rule that a denial of mandamus cannot alone be grounded on the availability of other relief (People ex rel. Starkweather v. Righeimer (1922), 306 Ill. 308, 312), and it fails to give proper weight to the numerous precedents which evidence the practice of this court to relax the technical restrictions of mandamus in matters such as this which are of great importance and which require expeditious resolution. In the process, the court purports to distinguish Dooley v. McGillicudy (1976), 63 Ill. 2d 54. I respectfully dissent.

A more complete recitation of the facts than that contained in the court’s order is essential to fully comprehend the issues raised. On December 26, 1978, Lara filed nominating petitions with the Chicago board of election commissioners. Lara was seeking to have his name placed on the ballot for the February 27, 1979, election for the office of alderman in Chicago’s 22d ward.

Also on December 26, 1978, Lara filed a statement of economic interests with the clerk of Cook County as required by the Illinois Governmental Ethics Act (Ill. Rev. Stat. 1977, ch. 127, par. 604A—101 et seq.). Two of the eight items of information requested were not provided.

On January 2, 1979, respondent Denise A. Arens filed objections to Lara’s nominating petitions. Three days later, on January 5, Lara filed a document entitled “Amended Statement of Economic Interests” in which he provided the two items of information which he failed to furnish in his original filing, and he also filed a statement of intention to defer filing of a statement of economic interests for 30 days. See Ill. Rev. Stat. 1977, ch. 127, par. 604A—105(c).

In a decision dated January 19, 1979, the respondent municipal officers electoral board sustained the objections. Lara’s nominating petitions were ruled improper because they had differently styled headings, varying in form though not in substance. The respondent board further ruled that Lara’s statement of economic interests was insufficient because, as originally filed, two answers were omitted and the attempted amendment covered 1978 rather than 1977, the year covered by the original filing. The board assumed the authority to review and determine the sufficiency of the statement of economic interests under section 10—10 of the Election Code (Ill. Rev. Stat. 1977, ch. 46, par. 10—10), which aHows the board to determine the validity of a candidate’s “certificate of nomination and nominating papers.” In a certificate of nomination, a candidate must include a statement of candidacy and attest therein that he has filed a statement of economic interests.

On January 29, Lara filed an action for review in the' circuit court of Cook County. The court heard arguments and on February 13 affirmed the board’s decision on the ground that the statement of economic interests was insufficient. It did not address the issue of whether the nominating, petitions were defective. At this point, the election was two weeks away.

Two days later, on February 15, Lara filed the instant motion for leave to file a petition for writ of mandamus which this court now denies. In his motion and supporting documents, Lara asked us to rule that the respondent board lacked authority to review and determine the sufficiency of the statement of economic interests, and that the board erred in ruling that the nominating petitions were defective. Lara did not, as the court’s order states, merely seek “to compel respondent Judge Joseph Schneider *** to reverse the decision of the municpal officers electoral board.” He sought alternatively to compel the respondent board members to expunge the order which sustained the objections to his nominating petitions, to enter an order denying the objections, and to cause Lara’s name to be included on the ballot. It is essential to note this for two reasons. First, it is very similar to the prayer for relief made and granted in Dooley v. McGillicudy (1976), 63 Ill. 2d 54, 55. Second, the basis of this prayer is that the Board was without authority to review and determine the sufficiency of Lara’s statement of economic interests, and when it is alleged that a respondent has acted without authority, mandamus may issue to compel expungement of the respondent’s orders (People ex rel. Elmore v. Allman (1943), 382 Ill. 156, 164). This is recognized even by the cases cited by the court in denying Lara’s requested relief. See People ex rel. Bradley v. McAuliffe (1962), 24 Ill. 2d 75, 78; People ex rel. Adamowski v. Dougherty (1960), 19 Ill. 2d 393, 397; People ex rel. Barrett v. Shurtleff (1933), 353 Ill. 248, 259-60.

My disagreement with the court’s order in this case is, as stated at the outset of this dissent, two-fold. First, we cannot deny mandamus merely because other relief may be available. Second, Dooley v. McGillicudy (1976), 63 Ill. 2d 54, and other decisions of the court provide ample support for Lara’s request for determination of this case by way of petition for writ of mandamus. A more complete discussion of both points follows.

Although our mandamus act (Ill. Rev. Stat. 1977, ch. 87, par. 1 et seq.) is not directly applicable to original actions for mandamus commenced in the supreme court, our cases have held that supreme court mandamus practice should conform as nearly as possible to its provisions (People ex rel. Pignatelli v. Ward (1949), 404 Ill. 240, 243; People ex rel. Cunningham v. Thistlewood (1882), 103 Ill. 139, 141). We have thus held, citing section 9 of the act (Ill. Rev. Stat. 1977, ch. 87, par. 9) that original actions for mandamus in this court should not be dismissed solely because of the availability of other relief (People ex rel. Starkweather v. Righeimer (1922), 306 Ill. 308, 312). My position on this point, based on the holding in Starkweather, should be made clear, as it is not my intention to sanction the indiscriminate use of mandamus: If no reason can be assigned for denying leave to filed a petition for writ of mandamus other than the availability of other relief, we should not deny leave. In the Dooley case itself, we recognized this principle and rejected the argument that mandamus should be denied merely because the petitioner could have followed ordinary review procedures (Dooley v. McGillicudy (1976), 63 Ill. 2d 54, 58). In Dooley it was argued that mandamus should not lie because the petitioner could have first sought review in the circuit court. We have here a similar, perhaps stronger, case for mandamus, yet the court distinguishes Dooley and denies relief. Unlike the parties in Dooley, the litigants here are at least in the proper court, and even this is conceded by the order in this case, although it is said that Lara has sought the wrong form of relief. Rather than denying relief, and assuming that mandamus is not the proper remedy, it would be preferable and more judicious to direct Lara to amend his pleadings to request the relief which the court deems appropriate. The mandamus act provides a mechanism for such action, allowing amendment of pleadings if it is determined that a party is entitled to some relief, but has sought to obtain it in the wrong way (Ill. Rev. Stat. 1977, ch. 87, par. 12; cf. 58 Ill. 2d R. 366(a)(1); Ill. Rev. Stat. 1977, ch. 110, par. 46(1)). Alternatively, as we have done before, we could have treated the materials filed by Lara as requesting direct appeal (People ex rel. Director of Finance v. Young Women’s Christian Association (1979), 74 Ill. 2d 561, 567; see also Lewis v. Dunne (1976), 63 Ill. 2d 48 (papers on file treated as request for writ of man damus though not designated as such); People ex rel. Palmer v. Twomey (1973), 53 Ill. 2d 479 (pro se petition for writ of habeas corpus treated as request for Post-Conviction Hearing Act relief); cf. 58 Ill. 2d R. 366(a)(5)). Admittedly, the need for the observance of proper procedure is of weighty concern, and there is no reason to sanction deviations from procedural rules when a party’s substantive rights will not be jeopardized. With important rights such as those of Lara at stake, however, we should not penalize a litigant who is under severe and unusual time restraints for alleged mistakes in perceiving the intricacies of our procedural rules. Instead, we should endeavor to determine the matter on the merits (58 Ill. 2d R. 2; Ill. Rev. Stat. 1977, ch. 110, par. 4). This result would certainly be preferable to ignoring the rule of Starkweather that mandamus should not be denied merely because other remedies are available.

The second basis of my disagreement with the court’s order lies in its treatment, or lack thereof, of Dooley v. McGillicudy (1976), 63 Ill. 2d 54, and the cases on which it is based.

In Dooley we awarded a writ of mandamus to petitioner, James A. Dooley, directing the county officers electoral board of Cook County “ ‘to expunge their order sustaining objections to the nominating papers of James A. Dooley for the office of judge of the Supreme Court; to enter an order denying said objections; and to transmit to the State Board of Elections a certified copy of its ruling in the manner provided by section 10—10 of the Election Code (Ill. Rev. Stat. 1973, ch. 46, par. 10—10.’ ” (Dooley v. McGillicudy (1976), 63 Ill. 2d 54, 55.) Petitioner Dooley had alleged insufficient time to seek review of the board’s decision in circuit court, and he argued that an original action for mandamus in our court would therefore lie. His reasoning was that the decision of the board was not rendered until January 13, 1976, that the election in question was to be held on March 16 of that year, and that the board was required by statute to certify candidates not less than 61 days from the date of the primary. Because of the circumstances of the case, this court allowed the mandamus action to be maintained and properly awarded the writ, despite the respondents’ contention that petitioner Dooley should have first applied to the circuit court for relief. We said in that case:

“This court has held that mandamus may be an appropriate remedy in situations which are of great import even though the normal criteria for an award of such relief are not evident. (People ex rel. Rice v. Cunningham, 61 Ill. 2d 353, 356.) We have recognized the existence of exceptions to the doctrine of exhaustion of remedies in analogous circumstances where strict application of the doctrine would lead to unjust or very harsh results. (Illinois Bell Telephone Co. v. Allphin, 60 Ill. 2d 350, 358.) This court has further said that ‘In cases involving the election process, where the time factor alone would usually render an appeal futile, this court has seen fit to grant original writs of mandamus. ’ (People ex rel. Meyer v. Kerner, 35 Ill. 2d 33, 37.) Under the circumstances of this case we conclude that the relief sought by plaintiff was appropriate.” (Dooley v. McGillicudy (1976), 63 Ill. 2d 54, 58.)

Because time was of the essence, the petitioner was not required to follow normal review procedures and could seek mandamus in this court rather than review in the circuit court.

The court now purports to distinguish Dooley and to interpret it as requiring that a litigant in Lara’s position move for direct appeal instead of seeking mandamus. This treatment of Dooley is indefensible.

First, the court is distinguishing a case which differs in no material respect. If there are any doubts about this, a brief review of the facts removes them. Most pertinent in this regard is that the election was less than two weeks away when Lara filed his motion in this court, whereas in Dooley the time span was two months. During this short period of time available to Lara, voting machines would have to be delivered and set, thereby placing greater time restrictions on Lara’s efforts to obtain relief. Lara’s situation appears to have been more pressing than that of Dooley, and this court itself acknowledges Lara’s time problem when, in its order, it cites the need for “summary action” (75 Ill. 2d at 64). We are said to exercise discretion in determining whether mandamus will lie, but we cannot exercise that discretion arbitrarily (People ex rel. Blome v. Nudelman (1939), 371 Ill. 30, 32) or deny relief to those more deserving than those whom we accommodate.

Second, it is also particularly inappropriate to suggest that a motion under Rule 302(b) for direct appeal to this court is the required, or even preferred, procedure. A litigant who is under extreme and unusual time restraints could reasonably perceive a Rule 302(b) motion to be inadequate because of the uncertainties of the motion.

As in mandamus proceedings, we are said to exercise discretion in deciding whether Rule '302(b) motions will be granted. As a practical matter, however, there is a difference in the “discretion” involved in each type of case. Our cases reveal that mandamus is seldom denied where entitlement to relief is established. Where a meritorious claim is asserted, mandamus will not be denied (People ex rel. Blome v. Nudelman (1939), 371 Ill. 30, 32) unless perhaps, as suggested by a justice of the court in an early case, insubstantial interests are involved (People ex rel. Harless v. Hatch (1863), 33 Ill. 9, 47 (two dollars)). Motions under Rule 302(b), however, do not stand in such a preferred position, as evidenced by the court’s recent treatment of Rule 302(b) motions. (See, e.g., Walker v. State Board of Elections (Nov. 15, 1978), No. 51054 (appeal under Rule 302(b) dismissed as improvidently granted (not published)).) In short, Lara was not reasonably assured of an appeal to this court under Rule 302(b), and it is inappropriate to suggest that this is the route that he was bound to take. We cannot expect litigants who are under extreme and unusual time restraints to rest their hopes on the possibility that we may allow a Rule 302(b) appeal and that we may expedite the appeal. It is fairly evident from his motion that Lara perceived that an appeal under Rule 302(b) would be inadequate. The motion, itself properly labeled “Emergency,” was accompanied by suggestions which expressed Lara’s anxiety. The suggestions, filed on February 15, 1979, said, “This matter should be determined finally and promptly by this Court because the Aldermanic Election in which candidate LARA seeks to be placed on the ballot is scheduled to occur on Tuesday, February 27, 1979. Under this time pressure, an appeal to the Illinois Appellate Court would be futile.” Under these circumstances, there existed a need to obtain relief quickly and surely. Faced with such an extraordinary situation, Lara sought an extraordinary writ. Ordinary forms of review such as a Rule 302(b) appeal were inadequate, and the court’s decision refusing to hear the merits of the case because a Rule 302(b) appeal was not sought borders too closely on the forsaken election-of-remedies concept.

The decision of the court, turning on a procedural technicality, prevented Lara from obtaining an expeditious and conclusive determination of the sufficiency of his efforts to place his name on the ballot. In so doing, the court ignores vital precedents, elevates form over substance, and, without cause, irrevocably prevented Lara from pursuing a substantial political interest.

MR. JUSTICE CLARK joins in this dissent.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE GOLDENHERSH

license: Public Domain

text:
    (No. 50277.
    RUSSELL A. MAYNARD, Appellant, v. CHARLENE M. PARKER et al.—(The Sisters of the Third Order of St. Francis, Appellee.)

      Opinion filed Jan. 26, 1979.

    Rehearing denied March 30, 1979.

    Ryan, J., took no part.

      Louis E. Olivero, of Peru (Clifford E. Lund, of counsel), for appellant.
    Bartley, Hession 8c Palmer, of Peoria, for appellee.
   MR. CHIEF JUSTICE GOLDENHERSH

delivered the opinion of the court:

Plaintiff, Russell A. Maynard, filed suit in the circuit court of Bureau County to recover damages for personal injuries which had caused him to be confined to St. Francis Hospital, operated by the Sisters of the Third Order of St. Francis. The hospital’s bill for services was in the amount of $11,027.96, and pursuant to the provisions of the hospital liens act (Ill. Rev. Stat. 1975, ch. 82, par. 97 et seq.) it served notice of its lien in that amount. Plaintiff’s case was settled for the sum of $37,500, and the defendants’ insurer issued its draft in the amount of $11,027.96 payable to the order of plaintiff, his wife, his attorney, and the hospital. In accordance with section 5 of the hospital liens act (Ill. Rev. Stat. 1975, ch. 82, par. 101) plaintiff filed a petition to adjudicate the rights of the parties and the circuit court ordered that out of the $11,027.96 the hospital pay plaintiff’s attorney one-third of the costs incurred ($205.48) and one-third of the amount claimed in its hen ($3,675.98). The hospital appealed, the appellate court reversed (54 Ill. App. 3d 141), and we allowed plaintiff’s petition for leave to appeal.

It is plaintiff’s contention that although there was no contract, express or implied, between the hospital and his attorney, that under the fund doctrine approved by this court in Baier v. State Farm, Insurance Co. (1977), 66 Ill. 2d 119, the circuit court correctly ordered the hospital to pay a portion of the attorney’s fees and costs incurred in effecting the recovery. He contends further that under Davis v. City of Chicago (1974), 59 Ill. 2d 439, the fund doctrine applies to a statutory lien.

The hospital liens act applies only to those hospitals which are “organized for nonprofit” or “operated entirely by a county.” (Ill. Rev. Stat. 1975, ch. 82, par. 97.) In many instances, both types of hospitals are required to admit persons without regard to ability to pay (see Small v. Pangle (1975), 60 Ill. 2d 510, 515-18; Ill. Rev. Stat. 1975, ch. 34, par. 303) and might thus enter into a creditor-debtor relationship without benefit of the opportunity usually afforded a creditor to ascertain the prospective debtor’s ability to pay.

There are important distinctions between the creditor-debtor relationship which existed between plaintiff and the hospital and the relationships between the parties in Baier and Davis. In Baier, the plaintiff was required to repay the sum advanced by the insurer “only in the event and to the extent that any net recovery is made” from a tortfeasor in a collision which occurred on November 3, 1967. In Davis v. City of Chicago (1974), 59 Ill. 2d 439, the welfare recipient was liable for repayment only from the recovery effected. (Ill. Rev. Stat. 1967, ch. 23, par. 11—22.) Here, plaintiff’s liability to the hospital was not dependent upon the creation of a fund; plaintiff was a debtor obligated to pay for the services rendered by the hospital out of any resources which might become available to him. A further distinction between the situations is that neither in Baier nor in Davis was there any limitation upon the amount of the lien which could be claimed, whereas here, the statute provided “that the total amount of all liens hereunder shall not exceed one-third of the sum paid or due to said injured person on said claim or right of action ***.” (Ill. Rev. Stat. 1975, ch. 82, par. 97.) We hold that the doctrine approved in Baier is not applicable, and the judgment of the appellate court is affirmed.

Judgment affirmed.

MR. JUSTICE RYAN took no part in the consideration or decision of this case.


author: MR. JUSTICE KLUCZYNSKI MR. JUSTICE CLARK,

text:
    (No. 50570.
    (No. 50571.
    (No. 50663.
    SHELDON MILLER, Appellee, v. THE DEPARTMENT OF REGISTRATION AND EDUCATION, Appellant. -THEORDORE DOLITSKY, Appellee, v. THE DEPARTMENT OF REGISTRATION AND EDUCATION, Appellant.-AARON FINN, Appellant, v. THE DEPARTMENT OF REGISTRATION AND EDUCATION, Appellee.

      Opinion filed Jan. 26, 1979.

      Rehearing denied March 30, 1979.

      CLARK, UNDERWOOD, and MORAN, JJ., dissenting.
    William J. Scott, Attorney General, of Springfield (Charles J. Pesek, Special Assistant Attorney General, of Maywood, of counsel), for appellant.
    Samuel Shkolnik, of Chicago, for appellee Sheldon Miller.
    Bernard B. Brody, of Chicago (Allan A. Ackerman, of Ackerman, Durkin & Egan, of counsel), for appellee Theodore Dolitsky.
    Joel M. Hurwitz, of Fohrman, Lurie, Holstein, Sklar & Cottle, Ltd., of Chicago, for appellant.
    William J. Scott, Attorney General, of Springfield (Charles J. Pesek, Assistant Attorney General, of Chicago, of counsel), for appellee.
   MR. JUSTICE KLUCZYNSKI

delivered the opinion of the court:

The Director of the Department of Registration and Education (Department) revoked three pharmacists’ licenses to practice pharmacy after an administrative determination that they were guilty of “gross immorality” under the Pharmacy Practice Act (Ill. Rev. Stat. 1973, ch. 91, par. 55.7—6, now Ill. Rev. Stat. 1977, ch. 111, par. 4019, as amended). The revocations were premised upon Federal convictions following the entry of pleas of guilty by Theodore Dolitsky, Sheldon Miller and Aaron Finn to the Federal misdemeanor offense of offering and making a kickback or bribe in connection with the furnishing of drugs and pharmaceutical services for which payment is made in whole or in part out of Federal funds under an approved State medical assistance plan (42 U.S.C. sec. 1396h(b)(l) (1976)). The pharmacists filed three separate actions for administrative review in the circuit court of Cook County.

The complaints filed by Miller and Dolitsky were heard by Judge Richard L. Curry, who ruled that the term “gross immorality” is unconstitutionally vague; that the Federal misdemeanor offense to which Miller and Dolitsky pleaded guilty is not encompassed by the legislative proscription of “gross immorality”; and that the pharmacists did not receive a fair hearing before the State Board of Pharmacy since the Board was supplied with the entire 49-count indictment, although the pharmacists were convicted upon only one count following their guilty pleas. Judge Curry reversed the decision to revoke, and the Department filed the instant direct appeal under Rule 302(a) (58 Ill. 2d R. 302(a)) on the ground that the circuit court had held section 7—6 of the Pharmacy Practice Act (Ill. Rev. Stat. 1973, ch. 91, par. 55.7—6) invalid.

The complaint filed by Finn was heard by Judge Arthur L. Dunne, who found that the order of revocation was properly entered and affirmed the decision as not contrary to the manifest weight of the evidence or contrary to law. This court allowed Finn’s motion for direct appeal under Rule 302(b) (58 Ill. 2d R. 302(b)) and consolidated aH three appeals.

The pharmacists’ licenses were revoked following three separate hearings before the State Board of Pharmacy. At each hearing certified copies of the Federal convictions were introduced as evidence. Copies of the multicount indictments were attached to the complaints filed with the Board, and in the cases of Miller and Dolitsky, they were admitted into evidence over the objection of counsel. In each case the Board found that the pharmacist had been convicted of the Federal misdemeanor and concluded that the conviction of such an offense constituted “gross immorality” within the meaning of the Pharmacy Practice Act. The Board recommended to the Director of Registration and Education that the pharmacists’ licenses be revoked. After the denial of separate motions for rehearing, the Director accepted the findings, conclusions and recommendations of the Board and revoked the licenses of all three pharmacists.

The first issue we address is whether conviction of the Federal misdemeanor offense to which the pharmacists pleaded guilty may constitute a basis for the revocation of their licenses under the Pharmacy Practice Act (Ill. Rev. Stat. 1973, ch. 91, pars. 55.1 to 55.24). The pharmacists were convicted of paying kickbacks or bribes to nursing homes in connection with the furnishing of drugs and pharmaceutical services in violation of a Federal statute, which at the time the offenses were committed provided:

“(b) Whoever furnishes items or services to an individual for which payment is or may be made in whole or in part out of Federal funds under a State plan approved under this subchapter and who solicits, offers, or receives any—
(1) kickback or bribe in connection with the furnishing of such items or services or the making or receipt of such payment, or
(2) rebate of any fee or charge for referring any such individual to another person for the furnishing of such items or services shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than $10,000 or imprisoned for not more than one year, or both.” 42 U.S.C. sec. 1396h(b) (1976).

At the time the pharmacists committed the acts which formed the basis of the Federal misdemeanor convictions, the Pharmacy Practice Act (Ill. Rev. Stat. 1973, ch. 91, par. 55.7—6) provided that the Department of Registration and Education shaE “[r] efuse to issue or renew, or revoke or suspend, any license or certificate of registration issued under the provisions of this Act or of any prior Act of this State when such registration is satisfactorily shown to have been obtained by fraudulent means, or when the applicant for or holder of such license or certificate has been convicted in this or any other state of any crime which is a felony under the laws of this state or convicted of a felony in a federal court, or is found to be guilty of gross immorality, or is found to have wilfully violated any of the rules and regulations promulgated for the administration of this Act, or to be addicted to drugs to such a degree as to render him unfit to practice pharmacy in this state.” (Emphasis added.) No express provision was made for revocation for the commission of misdemeanors or for the payment of bribes or kickbacks. Revocation of the licenses of the pharmacists was based on the general ground of “gross immorality.”

The meaning attached to a statutory provision is derived from an examination of the language of the statute and its purpose (see Village of Lombard v. Pollution Control Board (1977), 66 Ill. 2d 503, 507). The statute should be evaluated as a whole; each provision should be construed in connection with every other section and in light of the statute’s general purposes (Neville v. Friedman (1977), 67 Ill. 2d 488, 492; Huckaba v. Cox (1958), 14 Ill. 2d 126, 131).

The principal concern of the Pharmacy Practice Act, as provided in the legislative declaration, is with the protection of public health, safety, and welfare.

“The Practice of Pharmacy in the State of Illinois is declared a professional practice affecting the public health, safety and welfare and is subject to regulation and control in the public interest. It is further declared to be a matter of public interest and concern that the practice of pharmacy, as defined in this Act, merit and receive the confidence of the public and that only qualified persons be permitted to practice pharmacy in the State of Illinois. This Act shall be liberally construed to carry out these objects and purposes.” (Ill. Rev. Stat. 1973, ch. 91, par. 55.1.)

The Act is designed to assure, through regulations and control in the public interest, that only those who possess the requisite professional qualifications are licensed to practice pharmacy.

The term “practice of the profession of pharmacy,” as defined in the Act, means “the compounding, dispensing, recommending or advising concerning contents and therapeutic values and uses, offering for sale or selling at retail, drugs, medicines or poisons, whether pursuant to prescriptions or orders of duly licensed physicians, dentists, veterinarians, or other allied medical practitioners, or in the absence and entirely independent of such prescriptions or orders, or otherwise whatsoever, or any other act, service operation or transaction incidental to or forming a part of any of the foregoing acts, requiring, involving or employing the science or art of any branch of the pharmaceutical profession, study or training. ” (Emphasis added.) (Ill. Rev. Stat. 1973, ch. 91, par. 55.3(d).) The definition emphasizes the performance of acts requiring professional study and training in the science of pharmacy, rather than the business aspects of the practice of pharmacy.

The pharmacists and the Department place emphasis on Gordon v. Department of Registration & Education (1970), 130 Ill. App. 2d 435, for the proposition that only convictions for misdemeanors which concern the practice of pharmacy constitute “gross immorality” within the intent and purpose of the Pharmacy Practice Act. The pharmacists argue that their misdemeanors did not concern the practice of pharmacy; the Department argues to the contrary. In Gordon the pharmacist pleaded nolo contendere in the United States district court to two charges of dispensing drugs without a prescription in violation of Federal law. The State Board of Pharmacy determined that two separate sales of legend drugs without a prescription on the same date to the same person indicated a woeful disregard for regulations and was contrary to the public interest. The Gordon court noted that “[t]here are, indeed, many misdemeanors which are not concerned with professional practice and conviction upon such may not be a concern of public interest or welfare.” 130 Ill. App. 2d 435,439.

The payment of kickbacks or bribes is not concerned with the exercise of the professional skill of a pharmacist, the focus of the definition of the practice of pharmacy. Such conduct is related to matters 'extraneous to the central concern of the Pharmacy Practice Act, the protection of public health, safety, and welfare through regulation of the practice of pharmacy. A misdemeanor conviction for the payment of kickbacks or bribes is not “gross immorality” for purposes of pharmacy-license revocations.

Subsequent to the commission of the conduct which formed the basis for the pharmacists’ Federal convictions, section 7 — 6 of the Pharmacy Practice Act was amended, effective August 27, 1975, to include fee splitting as a ground for license revocation (Ill. Rev. Stat. 1975, ch. 91, par. 55.7—6, now Ill. Rev. Stat. 1977, ch. Ill, par. 4019). Fee splitting, as defined in section 10—1 of the Pharmacy Practice Act (Ill. Rev. Stat. 1975, ch. 91, par. 55.10—1, now Ill. Rev. Stat. 1977, ch. Ill, par. 4032), encompasses the conduct which formed the basis for the plaintiff pharmacists’ Federal misdemeanor convictions. Section 10—1 prohibits payments to employees, owners or managers of nursing homes of “any rebate, refund, discount, commission or other valuable consideration for, on account of, or based upon income received or resulting from the sale or furnishing *** of drugs or devices, prescriptions or any other service to patients.” The amendment expressly including fee splitting as a basis for revocation is a further indication that such conduct was not included in the general term “gross immorality” (see People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 373) and cannot constitute a basis for the revocation of the plaintiff pharmacists’ licenses.

We hold it was error to revoke the plaintiff pharmacists’ licenses on the ground of “gross immorality” based upon their convictions of a Federal misdemeanor offense involving the payment of kickbacks or bribes. For this reason, the judgment reversing the revocation of Miller’s and Dolitsky’s licenses is affirmed. The judgment affirming the revocation of Finn’s license is reversed. Because of our disposition of this cause, it is unnecessary for us to consider the constitutional issues raised.

50570 Judgment affirmed.

50571 Judgment affirmed.

50663 — Judgment reversed.

MR. JUSTICE CLARK,

dissenting:

The issue is whether “guilty of gross immorality,” as set out in section 7.6 of the Pharmacy Practice Act (Ill. Rev. Stat. 1973, ch. 91, par. 55.7—6), encompasses the plaintiffs’ Federal misdemeanor offenses of offering or making kickbacks or bribes in the course of furnishing drugs and pharmaceutical services. The majority seems to base its reasoning on essentiaUy two points. First, the majority sees here a lack of nexus between the kickbacks or bribes and the actual practice of pharmacy. Second, it finds significant that, subsequent to the plaintiffs’ commission of the Federal misdemeanors, the legislature enacted a provision which makes such conduct a ground for license revocation (Ill. Rev. Stat. 1975, ch. 91, par. 55.7—6, now Ill. Rev. Stat. 1977, ch. 111, par. 4019). Hence, it concludes, such conduct does not constitute “gross immorality.”

I disagree.

First, the plaintiffs’ payments of kickbacks or bribes were in connection with furnishing pharmaceutical services, or the practice of pharmacy. That is defined by statute:

“The term ‘practice of pharmacy’ or ‘practice of the profession of pharmacy’ means and includes the compounding, dispensing, recommending or advising concerning contents and therapeutic values and uses, offering for sale or selling at retail, drugs, medicines or poisons, whether pursuant to prescriptions or orders of duly licensed physicians, dentists, veterinarians, or other allied medical practitioners, or in the absence and entirely independent of such prescriptions or orders, or otherwise whatsoever, or any other act, service operation or transaction incidental to or forming a part of any of the foregoing acts, requiring, involving or employing the science or art of any branch of the pharmaceutical profession, study or training.” (Emphasis added.) (Ill. Rev. Stat. 1973, ch. 91, par. 55.3(d).)

That language clearly is broad enough to bring the conduct of plaintiffs within the scope of the Act (Ill. Rev. Stat. 1973, ch. 91, par. 55.1 et seq.), specifically within the ambit of “gross immorality,” proscribed by section 7.6 of the Act (Ill. Rev. Stat. 1973, ch. 91, par. 55.7—6). Moreover, section 1 of the Act provides that it “shall be liberally construed to carry out” the purposes of the Act, also set out in section 1:

“The Practice of Pharmacy in the State of Illinois is declared a professional practice affecting the public health, safety and welfare and is subject to regulation and control in the public interest. It is further declared to be a matter of public interest and concern that the practice of pharmacy, as defined in this Act, merit and receive the confidence of the public and that only qualified persons be permitted to practice pharmacy in the State of Illinois.” (Emphasis added.) Ill. Rev. Stat. 1973, ch. 91, par. 55.1.

The plaintiffs’ conduct was a betrayal of public confidence; they failed to .meet their obligation to the public. Their actions were not profit-seeking schemes involving outside illicit business activities such as fraudulent real estate ventures or giving kickbacks on providing rocmpharmaceutical services, or unrelated misdemeanors such as traffic offenses. If it had been so, I would not be dissenting. (See Gordon v. Department of Registration & Education (1970), 130 Ill. App. 2d 435, 438-39.) Rather, their wrongful conduct was integrally a part of their profession or livelihood. The plaintiffs dispensed drugs and pharmaceutical services on the basis of monetarily induced demand. Such conduct would rightly encourage consumers and other members of the public to question the plaintiffs’ honesty and integrity while dealing with them. Prevention of injury would seem to be the purpose justifying State licensing of a profession. A qualification for receiving and retaining such professional licenses would seem to be honesty and integrity. (See generally People ex rel. State Board of Health v. Apfelbaum (1911), 251 Ill. 18, and Kaplan v. Department of Registration & Education (1977), 46 Ill. App. 3d 968.) Plaintiffs apparently lacked that qualification while practicing their profession.

Second, the legislature’s proscription of fee-splitting, including payment of kickbacks and bribes, by enactment after the plaintiffs’ illegal activities occurred, does not persuade me that this misdemeanor conduct was not, therefore, within the bounds of “gross immorality.” True, a legislative amendment creates a presumption that a change in law is effected, but this presumption is neither conclusive nor controlling. (Bruni v. Department of Registration & Education (1974), 59 Ill. 2d 6, 11-12; Merrill v. Drazek (1975), 62 Ill. 2d 1, 6; Chicago & Illinois Midland Ry. Co. v. Department of Revenue (1976), 63 Ill. 2d 474, 481.) It “may be overcome by more persuasive considerations.” (Scribner v. Sachs (1960), 18 Ill. 2d 400, 411.) “ ‘Gross immorality’ should be measured by the standards of each profession ***.” (Mingo County Medical Society, Inc. v. Simon (1942), 124 W. Va. 493, 496, 20 S.E.2d 807, 809. Accord, Gordon v. Department of Registration & Education (1970), 130 Ill. App. 2d 435, 438-39.) Here, the Board of Pharmacy, composed of plaintiffs’ peers within the pharmacy profession, determined that plaintiffs’ conduct fell below those standards. I think they would have an intimate knowledge of the complexities and mechanics óf their profession such as would justify giving substantial weight to their findings and the Department’s decision. This I find more persuasive than legislative afterthought.

I must acknowledge my serious misgivings about the legislature’s use of the words “gross immorality.” That is a broad, vague concept deserving of critical analysis. However, given the majority’s choice of not addressing that constitutional issue, given the inseparable connection between the plaintiffs’ profession and conduct as well as their betrayal of public confidence, and given the interpretation of “gross immorality” by plaintiffs’ peers, I must conclude that the Department’s revocations should have been affirmed.

UNDERWOOD and MORAN, JJ., join in this dissent.


author: MR. JUSTICE CLARK MR. JUSTICE RYAN,

text:
    (No. 49982.

      In re MARSHALL I. TEICHNER, Attorney, Respondent.

      Opinion filed Jan. 12, 1979.

    Rehearing denied March 30, 1979.

      KLUCZYNSKI, J., took no part.
    RYAN, J., specially concurring.
    Philip Schickedanz, of Springfield, for the Administrator of the Attorney Registration and Disciplinary Commission.
    Robert B. Oxtoby, of Springfield, and Sidney Z. Karasik, of Chicago, for respondent.
   MR. JUSTICE CLARK

delivered the opinion of the court:

The Administrator of the Attorney Registration and Disciplinary Commission filed a 14-count amended complaint against the respondent, Marshall I. Teichner, a Chicago attorney. The case was assigned to the Hearing Board panel for Springfield, which dismissed counts IV, VIII and XIII, found against the respondent regarding part or all of each of the remaining counts, and recommended that the respondent be suspended from the practice of law for a period of five years and until further order of this court. The Review Board affirmed the Hearing Board’s dismissal of counts IV, VIII and XIII, and adopted the Hearing Board’s findings as to the remaining counts, but recommended that the sanction be suspension for three years and until further order of this court. The matter comes before us on respondent’s exceptions to the report of the Review Board; we also have allowed oral argument and the filing of additional briefs.

The Administrator has not specifically excepted in this court to the dismissal of counts IV, VIII and XIII, and, accordingly, we need not consider them further. Those counts which survived the scrutiny of the hearing and review boards generally involve the respondent’s allegedly improper solicitation of employment in the wake of two railroad disasters, a derailment and explosion in Laurel, Mississippi, on January 25, 1969 (see Alabama Great Southern R.R. Co. v. Allied Chemical Corp. (5th Cir. 1974), 501 F.2d 94, 96), and an explosion in Decatur on July 19, 1974 (see People ex rel. Phillips Petroleum Co. v. Gitchoff (1976), 65 Ill. 2d 249, 252).

Because respondent’s conduct in the Laurel, Mississippi, incident occurred prior to the creation of the Attorney Registration and Disciplinary Commission, the Chicago Bar Association conducted the original inquiry into this matter under our former Rule 751(a) (43 Ill. 2d R. 751(a)), but apparently made no formal recommendation to this court in connection therewith. The Administrator apparently became aware of the Laurel incident only after filing his original complaint in this cause. Subsequently, the Administrator filed an amended complaint, of which count XIV contains the allegations regarding the Mississippi incident. Respondent objected to .the inclusion of count XIV on the grounds that the delay between the original occurrence and inquiry and these proceedings was fundamentally unfair and therefore denied him due process of law. Both the Hearing Board and the Review Board were unpersuaded by this argument and so are we.

There is no statute of limitations governing our disciplinary proceedings. To constitute a bar to the maintenance of such proceedings, the delay must demonstrably have prejudiced the respondent’s ability to present a substantial defense to the allegations. The mere passage of time is not enough. (See In re Bossov (1975), 60 Ill. 2d 439, 447.) We find that the respondent has failed to demonstrate the necessary prejudice in this case. He had adequate opportunity to confront and cross-examine those witnesses who testified against him, and he was not demonstrably hampered in obtaining and presenting evidence necessary to his defense.

The Laurel incident involved the derailment and explosion of a train operated by a subsidiary of the Southern Railway System. On January 25, 1969, at approximately 4:20 a.m., two jumbo tank cars, each containing approximately 32,000 gallons of liquid propane, derailed and exploded in Laurel. (See Alabama Great Southern R.R. Co. v. Allied, Chemical Corp. (5th Cir. 1974), 501 F.2d 94, 96, aff’d on rehearing en banc (1975), 509 F.2d 539.) Among the killed and injured were many members of Laurel’s black community. The Rev. Allen Johnson, pastor of the St. Paul United Methodist Church of Laurel and a leader in that community, established a comprehensive program of relief for the injured persons and their families. At about the same time, agents of the Southern Railway System began appearing in Laurel and negotiating settlement agreements with the injured. Rev. Johnson believed these settlement agreements to be inadequate and sought to obtain legal counsel for the injured and their families. Through his cousin in Chicago, Rev. J ohnson contacted the respondent and asked him to come to Laurel. Rev. Johnson also sought assistance from lawyers all over the State of Mississippi, because it was his experience that local counsel in Laurel would not be satisfactory for the task at hand. At a meeting in Rev. Johnson’s church which respondent attended but did not address, several- attorneys advised the persons in the audience of their legal rights in general terms. After the meeting, Rev. Johnson assigned some of his aides to accompany the respondent in visiting injured persons and their families.

Counsel for the railroad lost little time in responding to this counterattack upon the railroad’s settlement practices. The railroad’s Chicago attorney wrote the following letter to the president of the Chicago Bar Association:

“Dear Joe:
We represent the Southern Railway System. We are informed that in mid-January, 1969, the Southern had a serious derailment at Laurel, Mississippi, that destroyed some 35 houses, injured about 40 people and caused one death. To provide prompt relief for those harmed, many of whom were poor, the Southern promptly sent a large number of claim agents who worked around the clock with a board to make immediate settlements. A few days after the accident, Marshall I. Teichner, an attorney of 100 N. LaSalle Street, Chicago, Illinois, appeared in Laurel and went driving around, passing out business cards and seeking clients.
This information is passed along to you for such investigation and possible disciplinary action as may seem appropriate. If further information is desired from the Southern, we will be glad to supply it.
With warmest regards.”

Respondent claims that the railroad’s involvement in the instigation of the charges relating to the Laurel, Mississippi, incident fatally taints those charges and requires their dismissal. We disagree. Although the record reveals substantial involvement on the part of investigators employed by the railroad in the initial investigation of respondent’s conduct in Laurel, we do not believe the record to be fatally tainted thereby. We also see no reason, on this record, to impugn the good faith of our attorney registration and disciplinary system in its investigation of this matter once it obtained custody of the file from the Chicago Bar Association.

Although the Administrator charged respondent with several instances of misconduct in connection with the Mississippi incident, the hearing and review boards found that the Administrator had proved his case only with regard to two of the incidents, one involving Sears Ward, and another involving Dorothy Bunch Brown. Since the Administrator has not specifically excepted to the hearing and review board’s findings regarding the other incidents, we need not consider them further.

With regard to the allegations involving Ward, the hearing and review boards found as follows:

“Respondent, without invitation or request by Sears Ward, called upon Sears Ward in Laurel, Mississippi, at his place of business, identified himself as a lawyer and requested Mr. Ward’s permission to talk with Ward’s parents concerning the injuries they had sustained as a result of the railroad disaster and offered to advance money to Mr. Ward’s parents if they needed it. Respondent on a later occasion came to the store where Ward worked and inquired of Ward if he had thought further about the proposition respondent had made to him concerning his representation of his parents.
The actions and conduct of respondent in Laurel, Mississippi, with respect to the foregoing constitute the improper solicitation of a client and tend to bring the legal profession into disrepute.”

The findings of the Hearing Board regarding disputed questions of fact, when affirmed or adopted by the Review Board, are entitled to approximately “the same weight as the findings of any trier of fact in our judicial system.” (In re Smith (1976), 63 Ill. 2d 250, 255. Accord, e.g., In re Bossov (1975), 60 Ill. 2d 439, 441 (weight accorded findings of Commissioners under prior rule).) However, the nature of this court’s role in disciplinary proceedings (see, e.g., In re Sherman (1975), 60 Ill. 2d 590, 593), as well as the complexity and subtlety of the distinctions between permissible and impermissible forms of solicitation (compare, e.g., People ex rel. Chicago Bar Association v. Edelson (1924), 313 Ill. 601, and In re Moore (1956), 8 Ill. 2d 373, with In re Damisch (1967), 38 Ill. 2d 195, and In re Hallett (1974), 58 Ill. 2d 239) compel us to look further into the record to understand more precisely the nature of the respondent’s conduct.

The record indicates that the respondent, accompanied by Wallace Dillon, a teacher at a local junior high school and aide to Rev. Johnson, visited Ward at a store he operated in Laurel. Although Ward was not a member of Rev. Johnson’s congregation, he knew both Rev. Johnson and Dillon, was aware of Rev. Johnson’s relief efforts, and agreed to talk with the respondent.

Ward’s parents had been injured in the derailment and the respondent asked Ward’s permission to speak with them in the hospital where they were being treated, and to offer them his services. There is no evidence that respondent asked Ward to request that his parents retain the respondent, although there is some evidence that either the respondent or Dillon offered to advance money to Ward’s parents for their medical needs. Respondent also inquired as to whether the Wards were receiving proper medical attention. Ward nonetheless declined to give respondent permission to visit Ward’s parents in the hospital. Respondent returned to Ward’s store on a subsequent occasion, ostensibly to use a public telephone, at which time respondent again asked permission to visit Ward’s parents to discuss his representation of them and Ward again refused.

Respondent denies that the foregoing conduct constituted the “improper solicitation of a client” and, alternatively, argues that his conduct was constitutionally protected.

The record clearly and convincingly demonstrates that respondent solicited employment by the elder Wards. That respondent never displayed a contract nor specifically requested Ward to recommend respondent to Ward’s parents does not preclude our finding that, in context, the only reasonable conclusion that can be drawn from respondent’s words and conduct is that he was seeking employment by the Wards. “Circumstantial evidence is legal evidence and neither the commissioners nor this court are required to be naive or impractical in appraising an attorney’s conduct.” (In re Krasner (1965), 32 Ill. 2d 121,, 127.) Respondent’s in-person communication with the elder Wards’ son, whom respondent reasonably could expect to play an important role in his injured, hospitalized parents’ decision, is, in this context, indistinguishable from communication directly with Ward’s parents themselves. The contents of that communication indicated respondent’s desire to be employed by the Wards and potential benefits which they might derive from that relationship, such as a loan to pay for certain of their medical expenses. Thus we find that the Administrator has, prima facie, met his burden of proof.

However, we also agree with the respondent that his conduct was constitutionally protected. Several decisions of the United States Supreme Court have established that, to protect the right of individuals to associate for the advancement of beliefs, ideas (NAACP v. Button (1963), 371 U.S. 415, 9 L. Ed. 2d 405, 83 S. Ct. 328) and individual economic interests (Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar Association (1964), 377 U.S. 1, 12 L. Ed. 2d 89, 84 S. Ct. 1113), the fourteenth amendment to the United States Constitution limits the power of the States to prohibit certain types of communications between attorneys and their potential clients. In addition, to protect the free flow of information regarding the availability and cost of legal services to potential clients, the court has sharply curtailed the power of the States to regulate published advertising by attorneys. (Bates v. State Bar (1977), 433 U.S. 350, 53 L. Ed. 2d 810, 97 S. Ct. 2691.) Finally, only recently has the court attempted to come to grips with the problem expressly reserved in Bates, the permissible scope of State regulation of in-person solicitation by attorneys. See In re Primus (1978), 436 U.S. 412, 56 L. Ed. 2d 417, 98 S. Ct. 1893; Ohralik v. Ohio State Bar Assn. (1978), 436 U.S. 447, 56 L. Ed. 2d 444, 98 S. Ct. 1912.

In Ohralik, the respondent attorney, Albert Ohralik, was picking up his mail at the local post office, when he learned from the postmaster’s brother that Carol McClintock, with whom he was casually acquainted, had been injured. He called her parents, who said she was in the hospital. When he suggested that he might visit her there, they assented but asked that he talk with them first. When Ohralik called upon the McQintocks they told him that she was driving the family car when struck by an uninsured motorist, injuring both her and her passenger. Ohralik assured the McClintocks that the Ohio guest statute protected them from liability to her passenger. He then suggested that Carol needed a lawyer, to which suggestion Carol’s mother responded that the decision was Carol’s.

Ohralik then visited Carol, who was still lying in traction in the hospital. He asked her to sign an agreement permitting him to represent her. She refused, explaining that she first wanted to discuss the matter with her parents. Ohralik did, however, photograph Carol in her then current condition, and also photographed the scene of the accident. He then visited Carol’s parents again, this time carrying a concealed tape recorder. Carol eventually signed a contingent-fee contract with him.

Ohralik also visited Carol’s passenger, again carrying a concealed tape recorder. The passenger, 18 and not yet a high school graduate, indicated that she did not know what was going on, but said “O.K.” to Ohralik’s oral request to represent the passenger in her claim under Carol’s uninsured motorist clause, in return for one-third of the recovery.

When the passenger’s mother attempted to disavow this agreement, respondent resisted, thereby holding up settlement with the insurance company. Carol also discharged the respondent but paid him a whole third of the $12,500 recovery. She paid another lawyer $900 to represent her in obtaining the eventual settlement of her claim.

The Supreme Court of Ohio suspended Ohralik indefinitely (48 Ohio St. 2d 217, 357 N.E.2d 1097), and the United States Supreme Court affirmed. In the companion case, however (In re Primus), the respondent attorney, Edna Primus, was affiliated with the South Carolina branch of the American Civil Liberties Union, but received no compensation for this aspect of her practice. She did, however, receive a retainer from the Carolina Council on Human Relations, through which she was asked by Gary Allen, a local businessman and community activist, to address a group of women on welfare who had undergone surgical sterilization. Primus advised them of their legal rights, including the possibility of bringing suit against persons responsible for their sterilization.

Subsequently, the ACLU told Primus that it would sponsor the bringing of such a suit (though there was no evidence that Primus herself would have received compensation in connection therewith). After Allen told Primus that Mrs. Mary Etta Williams, who had attended the meeting, wanted to file such a suit, Primus wrote to her informing her of the ACLU’s offer. The South Carolina Supreme Court issued a public reprimand to Primus (268 S.C. 259, 233 S.E.2d 301), but the United States Supreme Court reversed. Although the holdings of Primus and of Ohralik each can be stated quite narrowly and thereby readily distinguished (see 436 U.S. at 468-71, 56 L. Ed. 2d at 461-63, 98 S. Ct. at 1925-27 (Marshall, J., concurring in part and concurring in the judgments)), the court has used these cases as vehicles for articulating its analysis of the application of the guarantees of the first and fourteenth amendments to communications between lawyers and their potential clients regarding employment.

The court began its analysis by observing that the most important purposes of the first amendment are the protection of the rights of individuals to associate and of the free flow of information necessary to facilitate the expression of beliefs and ideas. (See 436 U.S. 412, 431-32, 56 L. Ed. 2d 417, 434-35, 98 S. Ct. 1893, 1904-05; 436 U.S. 447, 456, 56 L. Ed. 2d 444, 453, 98 S. Ct. 1912, 1918.) The court then observed that protection of the free flow of “purely commercial” information would inevitably weaken the protection of ideologically tinged expression. (436 U.S. 447, 455-56, 56 L. Ed. 2d 444, 453, 98 S. Ct. 1912, 1918.) Accordingly, the court reasoned that purely commercial expression could be more severely restricted than other forms of expression. (436 U.S. 447, 456, 56 L. Ed. 2d 444, 453, 98 S. Ct. 1912, 1918.) The court concluded that an attorney, such as Ohralik, whose interest in a case was purely commercial, could be more severely restricted in his expression than an attorney, such as Primus, whose interest was purely ideological. The restriction on the former, the court held, could include a prohibition of in-person solicitation, as a prophylactic measure to prevent fraud, undue influence, intimidation, overreaching and other forms of vexatious conduct. (436 U.S. 447, 460-67, 56 L. Ed. 2d 444, 456-60, 98 S. Ct. 1912, 1922-24.) In the case of the latter, however, only very narrowly drawn proscriptions of particular, harmful conduct would be permissible. (436 U.S. 412, 438, 56 L. Ed. 2d 417, 439, 98 S. Ct. 1893, 1908. But see 436 U.S. 412, 439-40, 56 L. Ed. 2d 417, 439-40, 98 S. Ct. 1893, 1909 (Blackmun, J., concurring).) The court recognized that the line (“based in part on the motive of the speaker and the character of the expressive activity”) between “associational activity for the advancement of beliefs and ideas” and activity for the “advancement of [one’s] own commercial interests *** will not always be easy to draw,” but concluded “that is no reason for avoiding the undertaking.” 436 U.S. 412, 438 n.32, 56 L. Ed. 2d 417, 438 n.32, 98 S. Ct. 1893, 1908 n.32. But see 436 U.S. 412, 443, 56 L. Ed. 2d 417, 442, 98 S. Ct. 1893, 1910-11 (Rehnquist, J., dissenting).

Thus, the court suggests that, where the conduct of an attorney falls between the two extremes of Primus, who had a strong ideological interest and no pecuniary interest, and Ohralik, who had a strong pecuniary interest and no ideological interest, this court must first attempt to determine whether the attorney’s motive and function entitle his speech and conduct to the greater protection afforded associational activity for the advancement of beliefs and ideas.

In the instant case, we are faced with an attorney whose activities are tinged with the sort of associational values strongly protected by the first and fourteenth amendments, yet whose intent to benefit financially also is unmistakable. If we were to base our judgment solely upon what we believe to be the prevailing motive of the respondent, we would have to conclude that his motive was pecuniary, not ideological. (Cf., e.g., People ex rel. Chicago Bar Association v. Edelson.) Yet our analysis cannot stop there, for as Mr. Justice Marshall aptly pointed out in his separate opinion, activity and expression which fall within the core of protected first amendment values do not automatically lose their protection because the actor or speaker stands to benefit financially from his actions. (436 U.S. at 473, 56 L. Ed. 2d at 464, 98 S. Ct. at 1928. See also UMW v. Illinois State Bar Association (1967), 389 U.S. 217, 19 L. Ed. 2d 426, 88 S. Ct. 353; New York Times Co. v. Sullivan (1964), 376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710; Thomas v. Collins (1945), 323 U.S. 516, 89 L. Ed. 430, 65 S. Ct. 315.) It is the flow of information and the effective association of individuals which are protected. See, e.g., First National Bank v. Bellotti (1978), 435 U.S. 765, 55 L. Ed. 2d 707, 98 S. Ct. 1407.

Here, a railroad disaster injured a large number of people in Laurel’s black community. The railroad’s agents almost immediately began to settle legal claims with members of that community, who, by the railroad’s own admission, needed the money. Yet to obtain that money, they had to release any and all claims against the railroad. Unable to afford legal counsel, the injured and their families probably were less able to evaluate the fairness of the proposed settlements. Illinois courts are not unfamiliar with the abuse and the “mutual mistakes of fact” which can result from such hasty, uncounseled settlements. See, e.g., In re Estate of Lilly (1976), 41 Ill. App. 3d 348, 353 (“possibly misleading tactics of the adjuster”; possibility of greater recovery if an attorney had pressed for it); Florkiewicz v. Gonzalez (1976), 38 Ill. App. 3d 115, 120 (undue haste). See generally Clancy v. Pacenti (1957), 15 Ill. App. 2d 171, 174-75 (greater potential for error).

Faced with this situation, Rev. Johnson sought to obtain legal counsel for the members of his community. Unable to pay for such legal counsel, the only attorneys he could turn to were those willing to operate on a contingent-fee basis.

We find it crucial that, in turning to the respondent for help, Rev. Johnson was not attempting to create a facade or device designed to facilitate the respondent’s solicitation of remunerative employment (cf. In re Primus (1978), 436 U.S. 412, 428 n.20, 56 L. Ed. 2d 417, 432 n.20, 98 S. Ct. 1893, 1903 n.20 (no evidence of “sham”)), but rather was acting as part of a bona fide relief effort created to further interests independent of the respondent’s interest in remunerative employment. Thus, even though the respondent’s motives were predominantly pecuniary, his conduct served to further the interests of Rev. Johnson’s community, and a blanket prohibition of all contact between respondent and that community would not pass constitutional muster.

We recognize that, at least where associational values are not implicated, in-person solicitation “for pecuniary gain” may be prohibited, and that, even where such values are implicated, “carefully tailored regulation that does not abridge unnecessarily the associational freedom of nonprofit organizations, or their members, having characteristics like those of the NAACP or the ACLU” also has not been foreclosed. (In re Primus (1978), 436 U.S. 412, 439, 56 L. Ed. 2d 417, 439, 98 S. Ct. 1893, 1908-09.) Thus, prohibition of in-person solicitation of contingent-fee contracts by attorneys operating at the behest of nonprofit organizations might well be among the types of restrictions which the United States Supreme Court would approve. Nonetheless, we decline to prohibit all such solicitation.

For all its abuses and excesses (see Pocius v. Halvorsen (1963), 30 Ill. 2d 73, 83), the contingent-fee system remains almost the only route to the courthouse for individuals of moderate means. (See In re Estate of Harnetiaux (1968), 91 Ill. App. 2d 222, 228.) To deny Rev. Johnson’s community the use of such attorneys to consult with the injured and their families on an individual basis would be to shut that community off from the most important, if not the only, source of the legal counsel they needed but could not afford. There is no evidence that, with regard to Ward, respondent’s conduct involved any of the substantive evils against which the prohibition of in-person solicitation traditionally is directed. Nor was respondent’s offer of financial assistance necessarily improper. This court long ago rejected any rule which would permit indigent plaintiffs to be forced into a hasty, inadequate settlement by their indigency. (People ex rel. Chicago Bar Association v. McCallum (1930), 341 Ill. 578, 589; Accord Bounougias v. Peters (1964), 49 Ill. App. 2d 138, 154. But cf. generally Annot. 8 A.L.R.3d 1155 (1966).) Accordingly, we deem it inappropriate to impose discipline for respondent’s conduct with respect to Sears Ward.

The second instance of aUeged misconduct in Laurel, Mississippi, involved respondent’s contact with Mrs. Dorothy Bunch Brown. The Hearing Board found:

“Respondent came to the home of Dorothy Bunch Brown in Laurel, Mississippi, and asked her to sign a contract of employment. Mrs. Brown [subsequently] did sign a contract of employment, *** at which time Respondent gave her $100.00 in cash and offered to give Mrs. Brown $80.00 per week thereafter. She had previously received the sum of $100.00 from a man by the name of Cornelius. Payments by Respondent to Mrs. Brown totalled $500.00.”

There is no significant evidence in the record connecting “Cornelius” with the respondent. We reject respondent’s argument, however, that the Hearing Board found otherwise, therefore indicating its confusion on this point. Rather, since Mrs. Brown claimed that Cornelius was somehow connected with respondent, and since Mrs. Brown also claimed that she received a total of $600, including the $100 from Cornelius, it is clear that, by finding that respondent’s payments totaled only $500, the Hearing Board rejected certain aspects of Mrs. Brown’s testimony on this point.

Mrs. Brown was, by her own admission, somewhat hampered in her memory of the events in Laurel in 1969, by the passage of time. However, there are certain aspects of respondent’s transaction with Mrs. Brown which are undisputed. First, it is undisputed that respondent offered to represent Mrs. Brown for a contingent fee. Second, it is further undisputed that the respondent advanced $500 to Mrs. Brown, apparently as a loan against the proceeds of her claim. Finally, it is also clear to us from the record that, as in the case of Sears Ward, the respondent visited Mrs. Brown in the company of an aide to Rev. Johnson as part of Rev. Johnson’s program of providing legal assistance to the injured members of the community. Here, too, we find the evidence clear and convincing that respondent’s motive was pecuniary, not ideological, in offering to represent Mrs. Brown for a substantial contingent fee. Yet, as in the case of Sears Ward, to prohibit this type of communication would be to deny legal assistance to persons in Mrs. Brown’s position. Given the very limited weight which can be given to Mrs. Brown’s testimony, we do not find clear and convincing evidence of overreaching or other improper conduct by the respondent in these circumstances which would justify the imposition of the disciplinary sanction.

We therefore decline to impose any sanction with regard to respondent’s conduct in Laurel, Mississippi.

We now turn our attention to the counts dealing with the Decatur, explosion. In count I of his amended complaint the Administrator charged that the respondent offered to pay Mrs. Connie Snoke, an employee of an automobile rental agency at the Decatur airport, to introduce him to injured persons and their acquaintances and relatives. The Hearing Board found “[r] espondent solicited the aid and assistance of Mrs. Connie Snoke *** for the purpose of contacting individuals injured as a result of the Decatur explosion and obtaining employment by them.” Although the record indicates only that Mrs. Snoke testified that respondent “told me that if I would give him some names and addresses of people that worked on the railroad he would pay me and pay them,” the surrounding circumstances indicate that the respondent’s intent was not to obtain the names of witnesses but, rather, names of potential clients, and therefore warrants discipline.

Counts II and III relate to the respondent’s action in soliciting employment from Ruth Garner and her husband. The Garners’ home was damaged by the explosion, and members of the Gamer family temporarily were scattered, living in various locations. A friend of Mrs. Gamer, Mrs. Stubblefield, told respondent “about Mrs. Garner’s problems, and thought she was very confused and up in the air about things, and thought she would need good legal advice ***.” Mrs. Stubblefield evidently offered to call Mrs. Gamer and inform her of the availability of respondent’s services. It is undisputed, however, that respondent did not wait to hear from Mrs. Garner but, instead, called her and arranged to meet her and her husband. When he arrived, she was, understandably, very upset. Her home was damaged, her family was scattered, and her insurance adjuster was unsympathetic to her desire to obtain temporary housing elsewhere to keep her family together. Nonetheless, respondent saw fit to seek employment, on a contingent-fee basis, with Mrs. Gamer at this time. (Although there is no evidence that respondent asked her to sign a contract, it is clear that he was seeking to be retained on a contingent-fee basis.) Later that day, the respondent returned to the Garners’ house, where Jerry Gamer met the respondent outside, told him that he and his wife did not wish to retain an attorney at this time, whereupon respondent left.

We agree with the hearing and review boards that discipline may be imposed for the conduct demonstrated by the evidence adduced with regard to counts I, II and III. Respondent’s actions with regard to Connie Snoke and the Gamers furthered the associational rights of no person or group. Nor, on balance, did his actions further the dissemination of truthful information about the availability of legal relief and legal services to members of the public who were in need of such information. There is no credible evidence in this record to indicate that the Garners indicated a desire to meet with the respondent before the respondent contacted them. Rather, quite the opposite is true. Respondent knew only that the Gamers might have need of legal assistance, and from this he sought to insure that the legal assistance they received was his. Even if the respondent did not know, as he did, that Mrs. Gamer was in no condition to calmly consider whether to sign away one-third of her claim in return for representation by the respondent, it would have been improper for the respondent to have arranged an appointment with the Gamers without their having approached him first. The mere fact that the respondent thought he had been able to manipulate one of Mrs. Gamer’s friends to introduce him to the Garners was insufficient to justify his having contacted them without an indication of interest on their part.

That respondent was seeking to represent the Garners in return for a very substantial contingent fee is an aggravating factor in this case, even though the respondent did not ask Mrs. Gamer to sign a contract at their first meeting. Although the economic imperatives which support the contingent-fee system also impel us to refrain from prohibiting its use by a community leader (such as Rev. Johnson in Laurel, Mississippi) to provide legal advice to persons who otherwise would not receive it, such considerations apply with substantially lesser force to respondent’s conduct with regard to the Gamers. Rather, the possible bad effects which obtain from the contingent-fee system predominate here. For example, the high cost (one-third of any settlement and up to 40 or 50 percent of any judgment obtained after trial and appellate litigation) of the contingent fee proposed here might not be justified in the minds of potential clients by the additional benefits, i.e., higher recovery, obtained through the services of an attorney. In addition, an attorney with an interest in his client’s recovery may tend to be less sensitive to a client’s desire to avoid the trauma of litigation. Indeed, Mrs. Gamer’s doctor advised her that, for health reasons, she should avoid such trauma for the time being.

In Pocius v. Halvorsen (1963), 30 Ill. 2d 73, 83, this court observed:

“Contingent fee contracts do have the practical effect of giving an attorney a pecuniary interest in the successful prosecution of the litigation and, therefore, it is felt that unless absolutely fair they will adversely affect the usual attorney-client relationship. [Citation.] For this reason, and because such contracts sometimes lead to solicitation and otherwise bring disrepute to the law, they are closely scrutinized by the courts.”

Attorney-client disputes that result from such contingent-fee contracts are legion, and therefore, for the foregoing reasons, we conclude that the substantial contingent fee proposed by respondent is an aggravating factor in this case.

Counts V through VII and IX and X involve the respondent’s solicitation of the family of Darryl K. Hardy while he lay hovering between life and death as a result of bums sustained in the Decatur explosion, and of Leesa Hulvey, the late Hardy’s fiancee. The hearing and review boards made the following findings with regard to these counts which, with one exception, we find to be amply supported by the record:

“Respondent, with the assistance of Robert Lichtenberger, with whom Respondent had arranged for introductions and names and addresses of persons injured in the Decatur explosion, approached Lees a Hulvey and solicited from her employment to represent her for claims for injuries sustained by her boyfriend and fiance, Darryl Hardy.”
“Respondent, further, approached Mr. and Mrs. Hulvey, the parents of Leesa Hulvey, and solicited their assistance in convincing [her] to sign contracts of employment with Respondent.”
“Respondent, without invitation, approached Barbara Hardy, the mother of Darryl Hardy, a seriously injured bum victim of the railyard explosion in Decatur, Illinois and requested employment *** to represent her in connection with the injuries to her son.”
“Respondent, without invitation, approached Brenda K. Hardy, the divorced wife of Darryl Hardy and requested her to employ Respondent in connection with any cause of action she or her minor child [Darryl, Jr.] might have as a result of the explosion in the railroad yards at Decatur, Illinois.”

Respondent’s approach to Barbara Hardy was not uninvited. On the contrary it would appear that, because Lichtenberger was related by marriage to the elder Mrs. Hardy, Mrs. Hardy asked to meet with respondent, whose services she evidently found satisfactory. (She continued to employ him at the time she gave a deposition in this cause.) With regard to the other findings, however, there is more than ample support in the record.

The evidence indicates that Robert Lichtenberger called Barbara Hardy several times after the accident to inquire about her son Darryl. Darryl evidently had said during one of his moments of consciousness, “I got a railroad to sue,” which Barbara repeated to Lichtenberger. Lichtenberger in turn suggested that Barbara call the respondent. She did and asked him to come talk to her. When he did, she suggested that he speak to Leesa, Darryl’s fiancee. After speaking with Leesa, respondent returned the next day to again discuss his retention by Barbara, who then agreed to be represented by respondent. Respondent thereupon loaned Barbara money and explained that she and her son’s fiancee, Leesa, and her son’s ex-wife, Brenda (mother of Darryl, Jr.), would “work together” in their lawsuit.

Barbara, however, still was wary of Brenda’s feelings toward her. There is no evidence that respondent disclosed the existence of any possible conflict of interest in the joint representation he proposed.

The evidence further indicates that respondent, either himself or with the assistance of Robert Lichtenberger, introduced himself to Leesa at the hospital where Darryl was being treated. When respondent asked Leesa whether she had an attorney, she said she did not but wanted to discuss the matter with her parents first. Leesa gave respondent her parents’ phone number and he contacted them. In respondent’s conversation with the Hulveys, they emphasized their desire to see Leesa marry Darryl, with whom she had been living. The Hulveys agreed to respondent’s representation of their daughter and themselves signed contracts with the respondent.

Respondent agreed to look into the question of facilitating the marriage of Darryl and Leesa, but there is no clear and convincing evidence of a quid pro quo relationship between the respondent’s attempts to facilitate the marriage of Darryl and Leesa and the Hulveys’ agreement to encourage Leesa to retain the respondent.

When respondent met with Mr. and Mrs. Hulvey and Leesa, she accepted their advice to retain respondent. Subsequently, respondent loaned Leesa $200 to repay the identical amount which she had “borrowed” from the railroad claims agent stationed at the hospital where the burn victims were being treated.

Respondent also went to the home of Brenda Hardy, Darryl, Sr.’s ex-wife and mother of Darryl, Jr. Respondent asked to represent her personally and on behalf of her minor child in any action she might have for the death or injury to Darryl. She agreed, and afterwards he gave her either $200 or $300. There is no evidence that respondent discussed with Brenda the potential conflict of interest in the joint representation.

After Darryl died, Brenda spoke with respondent at the funeral home and said that she wanted to discuss her situation with the attorney who had handled her divorce. Respondent opposed this suggestion, according to Brenda. It is interesting to note that there was an arrearage in the support payments for Darryl, Jr., resulting from Darryl, Sr.’s injury, but not even this obvious potential conflict of interest slowed respondent from recommending that everyone even remotely connected with Darryl’s claim retain respondent.

Count XI deals with the respondent’s relationship with Robert Lichtenberger, a resident of Decatur who was injured in the explosion. The hearing and review boards found as follows:

“*** Respondent requested the assistance of John Bolero in obtaining introductions to individuals injured as a result of the Decatur, Illinois explosion.”
“As a result of this request, Respondent received a call from Robert Lichtenberger and made an appointment to meet Robert Lichtenberger in Decatur, Illinois.”
“After his arrival in Decatur, Illinois, Respondent solicited employment by Robert Lichtenberger, and requested Robert Lichtenberger to assist Respondent in securing the names of other individuals injured by the explosion and arranging appointments for Respondent to meet with such individuals.”
“Respondent paid Robert Lichtenberger the sum of $500.00 in cash for his assistance in this regard.”

With one exception, we find the evidence, on balance, clear and convincing in support of the findings of the hearing and review boards on this count. The evidence indicates that respondent had been dating Mary Bolero (a native of Decatur then living in Chicago) for some time prior to the explosion in Decatur. The day after the explosion, Miss Bolero called her father from respondent’s apartment, as she had in the past. Miss Bolero evidently told her father, John Bolero, that respondent was a lawyer specializing in plaintiff’s personal injury work and asked if he knew anyone who might be interested in respondent’s services. Bolero indicated that he did and spoke with respondent to ask respondent’s permission to recommend him to Robert Lichtenberger, who was the son of a friend of Bolero. Respondent gave Bolero permission to make such a recommendation. We find the evidence insufficient, however, to support the finding of the hearing and review boards that respondent asked Bolero to solicit Lichtenberger on respondent’s behalf.

Lichtenberger called respondent and they arranged to meet in Decatur. However, before respondent arrived in Decatur, Lichtenberger already had obtained counsel through a labor union referral service. Lichtenberger testified that he offered to make amends to respondent by introducing him to other potential clients. The respondent subsequently paid Lichtenberger several hundred dollars, which payment respondent claims was for “legwork” and not for solicitation. However, it is undisputed that Lichtenberger recommended respondent to Barbara Hardy and Shirley Tucker (although now Shirley Tucker Shields, we will refer to her as Shirley Tucker), and, while not undisputed, it also appears that lichtenberger introduced respondent to Leesa Hulvey. The amount of money involved is grossly disproportionate to the amount of legwork Lichtenberger had performed or was likely to perform in the near future. Nor do we believe it was, as respondent suggests, intended to buy a car to assist Lichtenberger in performing those services. Rather, in light of the surrounding circumstances, we think the only reasonable conclusion that can be drawn from this transaction is that respondent was compensating Lichtenberger for past and future services in the solicitation of clients. Cf. generally In re Damisch (1967), 38 Ill. 2d 195, 207.

Finally, in count XII, the hearing and review boards found:

“Through *** Lichtenberger, Respondent approached Shirley Tucker and sought employment by her to represent her in connection with her claims for injuries sustained as a result of the railyard explosion in Decatur, Illinois.”
“Respondent requested Shirley Tucker to call other individuals whom she knew and who had been injured in said explosion for the purpose of obtaining employment by said individuals.”

We find the evidence, on balance, clear and convincing in support of these findings. Shirley Tucker testified on two separate occasions that Lichtenberger recommended respondent to her, that she and respondent met subsequently, and that she retained respondent. After retaining respondent, Miss Tucker asked if she could call friends of hers who lived in Indiana and Missouri to recommend respondent to them. (On one occasion, she testified that he asked her to make the calls. She subsequently retracted that statement, however.) He agreed and gave her $100, of which he claims part was to cover the cost of the phone calls and part was intended as a loan. We conclude, however, that, like the money paid to Lichtenberger, a substantial portion of this money was intended to reward and induce Shirley Tucker’s assistance in the solicitation of clients for respondent.

Although the offense of solicitation does not, in itself, import “venality, fraudulent practices or moral turpitude” (In re Krasner (1965), 32 Ill. 2d 121, 129), respondent’s ancillary misconduct, particularly with regard to Ruth Garner and the Hulvey and Hardy families, demonstrates a gross deviation from the minimum standards of conduct expected of persons licensed to practice law in this State. Respondent’s insensitivity to Mrs. Gamer’s inability to adequately evaluate her need for legal counsel (cf., e.g., Illinois Code of Professional Responsibility, Disciplinary Rule 2—104 (1977)) and his complete disregard of the conflicts inherent in the Hardy-Hulvey family situation (cf., e.g., Professional Ethics Opinion No. 363, 60 Ill. B.J. 151 (1971); H. Drinker, Legal Ethics 105 (1953); Illinois Code of Professional Responsibility, Disciplinary Rule 5—105 (1970)) are examples of conduct which disserves the goal of making information about legal services available, because it dissuades individuals from seeking legal counsel.

Finding no merit in respondent’s other arguments, we order that the respondent be suspended from the practice of law for 2 years.

Respondent suspended.

MR. JUSTICE KLUCZYNSKI took no part in the consideration or decision of this case.

MR. JUSTICE RYAN,

specially concurring:

Although I concur in the conclusion of my colleagues as to^ the sanction imposed upon the respondent, I cannot agree that his conduct in Mississippi is not thé proper subject of disciplinary action.

The majority opinion finds that the respondent’s solicitation activities in Mississippi were tinged with associational values protected by the first and fourteenth amendments. I do not agree. The United States Supreme Court recently decided In re Primus (1978), 436 U.S. 412, 56 L. Ed. 2d 417, 98 S. Ct. 1893, and Ohralik v. Ohio State Bar Assn. (1978), 436 U.S. 447, 56 L. Ed. 2d 444, 98 S. Ct. 1912. Both of these opinions were filed on the same day. Primus involved activities and solicitation on behalf of an association in furtherance of the ends of the assoication and did not involve any commercial solicitation of business for the financial benefit of the attorney. Ohralik, on the other hand, involved no associational activities but did involve personal solicitation by the attorney for contingent-fee contracts. The only difference between our respondent’s activities in Mississippi and those of the attorney in Ohralik is the nebulous associational relationship which the majority finds present in our case. This relationship is apparently not with Rev. Johnson’s church, nor was the solicitation to further its ends, because some of those solicited were not members of the church. The association which the majority finds renders this otherwise improper solicitation permissible is indefinitely defined as “Rev. Johnson’s community.” There is no organization in existence with which the respondent was associated. Rev. Johnson stood as a self-appointed person in the community conducting what he thought was a helpful effort. The opinion in this case fulfills the prophetic statement of Mr. Justice Rehnquist in his dissent in Primus:

“And we may be sure that the next lawyer in Ohralik’s shoes who is disciplined for similar conduct will come here cloaked in the prescribed mantle of ‘political association’ to assure that insurance companies do not take unfair advantage of policyholders.” 436 U.S. 412, 442, 56 L. Ed. 2d 417, 441, 98 S. Ct. 1893, 1910.

There is nothing in either Primus or Ohralik that requires that this court refrain from imposing sanction on the respondent for his solicitation in Mississippi. The majority opinion has gone far beyond the holding in Primus. The United States Supreme Court, by its holdings in the two cases cited, has defined an area of permissible solicitation and an area of impermissible solicitation. Admittedly there is a substantial undefined area between these two poles that must be charted. However this is the United States Constitution that is being interpreted. If further deviation is to be had from what has been heretofore viewed as acceptable limitations on commercial speech (solicitation of clients), the United States Supreme Court, and not this court, should define the further expanded boundaries. Otherwise the area of commercial solicitation by an attorney which we may find to be protected by the first and fourteenth amendments may subsequently be found by the United States Supreme Court to constitute conduct not falling within these constitutional protections. The majority opinion relies to a great extent upon language used by Mr. Justice Marshall and by Mr. Justice Blackmun in their concurring opinions. The language of these two justices was not concurred in by other members of the court and should not be read as an indication that the United States Supreme Court did extend the constitutional protection of commercial speech to the solicitation carried on by our respondent. Just as this concurring opinion represents only the beliefs of its author, and not the holding of the court, so also must we view the language of Mr. Justices Blackmun and Marshall.