Meanwhile, the National Association for the Advancement of Colored People (NAACP) was filing legal challenges to segregation in various Virginia schools.
In January 1956, Virginia voters called for a limited state constitutional convention to allow tuition grants, which could be used at segregation academies and thus undercut the desegregation required by Brown.
Seven of the new statutes concerned NAACP practices in Virginia, and of those, five regulated lawyers: expanding the definitions of the common law legal ethical violations called barratry, champerty, maintenance, running and capping.
[4] Champerty occurs when a third party (not the plaintiff or nor their legal counsel) assumes the risks and financial costs of a lawsuit in return for a portion of the monetary award.
[7] The new laws also collectively required annual filing of financial reports and membership lists for any group that promotes or opposes state legislation aimed at (1) any race, (2) any organization attempting to influence public opinion on behalf of any race, or (3) any group raising funds to employ legal counsel in connection with racial litigation.
[6] Virginia's legislature also established two new legislative committees composed of lawyer members of both houses, which investigated NAACP practices both in light of and using the new statutes.
The Virginia NAACP soon filed suit in federal court in 1956 against the five new legal ethics laws, and also supported Quaker printer David Scull when he was subjected to aggressive testimony by the Thomson Committee.
Then on May 4, 1959, the Supreme Court unanimously threw out the contempt conviction the Thomson Committee had obtained in Scull v. Virginia ex rel.
The case that ultimately became this one had been filed by the NAACP against the Attorney General of Virginia (first J. Lindsay Almond then when he resigned to run for governor his interim successor Kenneth Cartwright Patty, and later other successors), to have the five barratry, champerty, maintenance, running and capping laws thrown out as an unconstitutional infringement of its members' rights under the 1st Amendment to freedom of speech and freedom of assembly.
The NAACP then pursued its suit in state court, suing Harrison and later substituting his successors as Virginia Attorney General (initially Frederick Gray then Robert Button, since Harrison resigned to run for governor, and was elected on the Democratic ticket with Button), in the Circuit Court of the City of Richmond to have the two remaining statutes overturned on constitutional grounds.
[11] The case was argued on November 8, 1961 and reargued on October 9, 1962, due to the resignation of two justices (Charles E. Whittaker and Felix Frankfurter) and their replacement (after a Senate confirmation process) by Byron White and Arthur Goldberg.
[15] The state of Virginia had argued that organizational activity (collecting membership dues, hiring attorneys, advocating lawsuits, etc.)
But Brennan and the majority disagreed, concluding that Court precedent clearly establishes that this kind of lawful activity is protected by the First and Fourteenth Amendments.
"[17] The Virginia Supreme Court of Appeals had asserted that government had an interest in ensuring high professional standards in the legal community, and that it was not the state's intent to restrict freedom of expression.
[27] A more narrowly drawn statute, White felt, may have passed constitutional scrutiny, but the majority's decision appeared unable to admit such an outcome.
[32] The dissenters denied that litigation enjoyed strong constitutional protection, because it was only "associated" with freedom of expression, and the Virginia statutes only incidentally infringed on this speech.
However, those later class action cases also raised possible ethical problems of lawyers placing ideological motivations above actual client interests.
The American Bar Association later adopted Model Rule of Professional Conduct 6.1 (applicable to lawyers working without charging clients) to distinguish those solicitations from others that violate legal ethics guidelines, although Justice Thurgood Marshall criticized that approach as benefiting primarily white establishment attorneys who could afford to work without pay, rather than increasing diversity within the bar, as NAACP practices had.
Thus, in Ohralik v. Ohio State Bar Assn.,436 U.S. 447 (1978),[39] the Supreme Court distinguished inappropriate for-profit client solicitations from the protected political speech in Button and the ACLU attorney in In re Primus, whom it found South Carolina improperly prosecuted for offering legal services for free to a woman who was involuntarily sterilized.