A Lawyer When Needed 9780231877084

Table of contents :
FOREWORD
PREFACE
CONTENTS
1. THE NEED FOR A LAWYER
2. THE HATED
3. THE POOR
4 THE MIDDLE CLASSES
5. SPECIALIZED L E G A L SERVICES
6. THE PUBLIC INTEREST
INDEX

Citation preview

JAMES S. CARPENTIER LECTURES

By E L L I O T T E V A N S C H E A T H A M

COLUMBIA UNIVERSITY PRESS NEW

YORK

AND

LONDON

I 9 6 3

Elliott E v a n s C h e a t h a m is Professor of L a w , Vanderbilt University, and Charles E v a n s H u g h e s Professor E m e r i t u s of L a w , C o l u m b i a University.

Copyright (e) 1963 Columbia University Press Library of Congress Catalog Card N u m b e r : 63-19857 Manufactured in the United States of America

JAMES

S. CARPENTIER

LECTURES

1904-5

James Bryce, Viscount Bryce L a w in Its Relations to History

1907-8

John Chipman Gray T h e Nature and Sources of the L a w

1910-11

Arthur Lionel Smith English Political Writers of the Seventeenth and Eighteenth Centuries and the Development of English Political Theory from Hobbes to Burke David Jayne Hill T h e Problem of World Organization As Affected by the Nature of the Modern State

1911-12

Sir Frederick Pollock T h e Genius of the Common L a w

1913-14

Sir Courtenay Ilbert T h e Mechanics of L a w Making

1916-17

Harold Dexter Hazeltine English Legal History

1919-20

Willard Barbour English History with Special Reference to the Development of Rights through Procedure

1923-24

Sir Paul Vinogradoff Some Problems of Jurisprudence

vi

JAMES S. CARPENTIER

LECTURES

1926-27

Sir William Searle Holds worth The Historians of Anglo-American Law

1927-28

Benjamin Nathan Cardozo The Paradoxes of Legal Science

1940-41

Sir Cecil Thomas Carr Aspects of Administrative Law

1955

Edmund Morris Morgan Some Problems of Proof under the Anglo-American System of Litigation Thomas Reed Powell Vagaries and Varieties in Constitutional Interpretation

1956

Glanville Williams The Sanctity of Life and the Criminal Law

1962

Edwin W. Patterson Law in a Scientific Age

1963

Elliott Evans Cheatham A Lawyer When Needed

FOREWORD

T h e efforts of modern society to administer justice with everincreasing refinement of legal principle and concept make the layman's stock of information about the law correspondingly insufficient. With increasing frequency he must enlist the services of one trained in the law. In the Carpentier Lectures which follow, Elliott Evans Cheatham, Charles Evans Hughes Professor of L a w Emeritus, explores the practical and ethical factors which underlie the call for measures to make counsel available in civil as well as criminal cases. H e considers five situations in which renewed efforts are indicated. These concern a fair trial for the hated defendant, legal aid for the poor, methods of bringing legal services to the middle classes, problems posed by the employment by a lawyer of fellow professionals on behalf of a client, and the need for public representation in controversies which are private in form. T h e series of lectures delivered by Elliott Cheatham was the seventeenth since the establishment of the Carpentier Lectures in 1903 by General Horace W . Carpentier in honor of his brother, James S. Carpentier. James Carpentier was described in the instrument of establishment as "a man of scholarly taste and acquirements and a lawyer of character, learning and ability." These terms aptly describe the distinguished scholars w h o have been called to the Carpentier rostrum. Elliott Cheatham is of this

Vili

FOREWORD

tradition. His accomplishments span many fields of the law. He has devoted himself to systematic study of the legal profession and stands without peer in the movement to encourage study of professional ideals in the law schools. His life in the law personifies those ideals in their most excellent form. W I L L I A M C. WARREN

Dean of the Faculty of Law Columbia University fune, 1963

PREFACE For the legal philosopher the law has many aspects. F o r the layman it is an unknown process by which those adept in its mysteries may bind him or loose him. H e knows he needs the aid of the initiated, the lawyers, in many matters. H e feels the need all the more as government steadily expands the range of law with its commands, prohibitions, and protections that threaten or diminish or enlarge the old freedom of the individual. T h e satisfaction of the need is the subject of these brief lectures. F o r the American statesman a major concern is the preservation of the independence of the individual while maintaining in government the full measure of power demanded by complex times. T o this concern of statecraft the Supreme Court of the United States has addressed itself, especially through the Bill of Rights. F o r the government it has safeguarded broad powers over the economy by shrinking almost to the vanishing point the old swollen limitations on economic regulation. F o r the citizen and the alien as well it has expanded protection against oppressive methods of government by enlarging the meaning of the Bill of Rights and by extending its application to the states as well as to the nation. In a word it has restricted substantive due process of law while reinforcing procedural due process through increased emphasis on civil rights. T h e illustration pertinent here is the legal right to counsel for the defendant in a criminal case where in

PREFACE

X

the most vivid form the government pits itself against the individual. T h e legal right, important thought it may be, is only a paper right unless there are lawyers with the spirit to give it life. These are the matters dealt with in the first part of the lectures. Yet criminal law is but a small part of the law that bears on the affairs of men. T o make lawyers available when needed, far more is called for than the legal and actual right to counsel for those accused of crime. A second marked American characteristic, besides the expansion of governmental powers, is the continuing development of groups. This is a mark of our people and not merely of our times as that acute observer, de Tocqueville, pointed out. Many of these groups have as their object the advancement of public purposes without governmental control, like legal aid societies. Some of them seek to improve the performance of the responsibilities with which their members are charged, like medical and bar associations. Other groups, such as cooperatives, endeavor only to secure for their members dependable goods and services at low cost. Still others frankly seek to maintain or to expand privileges for themselves and their members against competitors, rivals, and the public, like trade associations and labor unions, guilds, and cartels. All these associations, giving to their leaders large opportunity for public service or injury, may strongly affect the provision of or the need for the services of lawyers. It is to them that the latter part of the lectures is primarily directed. Under our adversary system in law and in the economy the parties in interest have constant need for the services of lawyers, whatever the varied methods of making the services available. I am very grateful to Dean Warren and to the Faculty of L a w for the privilege of returning to Columbia University and giving

PREFACE

xi

these lectures. I am indebted to my students who over the years have explored the subject with me and, as the footnotes indicate, to many other workers in the field. M y colleague Professor Robert N . Covington very kindly and helpfully read the lectures in manuscript. My wife with her feel for clarity has aided me throughout. ELLIOTT

Nashville,

Tennessee

March, 1963

E.

CHEATHAM

CONTENTS F O R E W O R D , by William C. Warren

vii

PREFACE

ix

1. T H E N E E D F O R A L A W Y E R

i

2. T H E H A T E D

13

3. T H E POOR

39

4

59

THE MIDDLE CLASSES

5. S P E C I A L I Z E D L E G A L S E R V I C E S

87

6. T H E P U B L I C I N T E R E S T

104

INDEX

125

y THE NEED

FOR A

LAWYER

In the early 1900s it was common for writers to contrast the nineteenth and twentieth centuries, the one ended and the other starting on its way. Some commentators looking backward and surmising forward put the contrast in economic terms. T h e nineteenth century was a century of production, a century in which the industrial revolution had come to flower by employing new sources of power and by bringing science out of the laboratory into the factory. T h e twentieth century, so they said, was to be a century of distribution, an age in which for the first time the products of industry would be distributed widely

among

those who need them. T h e contrast can be denied and refuted in detail. It is error to say that the nineteenth century was blind to distribution when this nation gave away western lands to millions of citizens w h o agreed to work them. It is no less wrong to say that production is ignored by our century which has seen the prodigious results of the assembly line, the swift advance of automation, and enormous changes in sources of power from the molecule and its splitting in combustion to the atom and its fission and fusion. Y e t there is a core of truth in the contrast. In the East the twentieth century witnesses Communist revolutions which for those concerned with economics hopefully mean the distribution of goods to each according to need. In the West it sees far more

2

THE NEED

FOR A

LAWYER

intricate and successful changes, which Professor Berle has called T h e 20th Century Capitalist Revolution. T h e Western revolution has stressed the preservation and advancement of democratic values while pressing on with the wider distribution of economic goods. Its success in the distribution of goods and gadgets is marked by the title it has earned : T h e Affluent Society. H o w has it been in our period with the professions, say, medicine and law ? T h e answer is, I submit, that they have been concerned primarily with the earlier phase, production, rather than with distribution. T h e professions have stressed improvement of the quality of services, instead of revision and expansion of methods by which the services may be brought to all in need of them. Medicine illustrates this. T h e biological and physical sciences and, to a lesser degree as yet, the behavioral sciences have given medicine surer methods of diagnosis and more effective means of treatment. Medicine has extended its period of instruction down into the college and beyond the four years of medical school. T h e medical profession has developed systems of specialized study and certification and of continuing professional training unmatched elsewhere. T h e quality of the services rendered has been given unremitting attention since the beginning of modern medical education in the 1890s. W i t h distribution of the product it is quite otherwise. T h o u g h there is an immense amount of free clinical services rendered in the process of continuing education in the medical schools and the hopsitals, the medical profession has not developed effective plans for wider extension of medical services to all those w h o need them. T h i s is not the place and, even more clearly, I am not the person, to consider the merits and the demerits of the various systems for extending medical care. It is enough for my purpose

THE NEED

FOR A

LAWYER

3

to point out that this profession which has done and is still doing so much to improve the quality of its product has given far less attention to the extension of its services. In law the general conclusion is the same, though with differences in detail. T h e level of legal education has risen greatly, even though the lesser precision of the studies basic to law has not permitted the close relation of the sciences and the profession that is characteristic of medicine. Practitioners have developed a special proficiency in fields important for the larger clients. While improving the quality of its services, the legal profession has not given comparable attention to the methods of distribution of its services. This is the fact to which this book is directed. Though I think I can see some of the problems, I cannot perceive better than another the dim shape of the varied and complex things to come. With this limitation given, I will indicate some areas which call for new or renewed attention by the profession so that legal services will be increasingly available to those who need them. In considering changes it is wise to keep in mind the attitude mentioned by the perceptive Master of the Rolls : 1 "Of course, by any professional man in any profession changes of practice are apt to be looked upon with suspicion and disfavor." It is equally well to take encouragement from his words on the resources for development within an institution like ours: " [ A ] living organism has always within it—or could have within it—the means of new expression and the seeds of fresh growth." 2 I will begin with a brief outline of two basic matters. The first is the paradoxical yet essential nature of the services of our pro1

LORD EVERSHED, T H E

3

It, J.

COURT

OF

APPEAL

IV E N G L A N D

(1950).

THE NEED

4

FOR A

LAWYER

fession and of the conditions under which they are rendered. T h e second is the origin of that recently declared and still rapidly developing right, the right to counsel under the Constitution of the United States. T h e American lawyer is a paradox within paradoxes. T h e larger social system within which he works rests on seeming inconsistencies. T h e economy, yielding so abundandy that its surpluses are embarrassing, is predominandy

competitive and

purposefully

directed to profit rather than to abundance. T h e needs of society, even the basic ones for food, clothing, and shelter, are met through the strivings of individuals undirected and uncoordinated by government, with the producer compensated by those who seek his product. At the heart of law itself there are antitheses that a great judge has called T h e Paradoxes of Legal Science. Stability and progress, precedent and equity, justice that is universal yet individual, the one and the many, liberty, equality, and order, such as these are "fundamental opposites [that] clash and are reconciled."

3

In its method of administration our law is paradoxical. A trial, which the state employs in settling unresolved controversies, is not a cooperative effort by state agencies to determine the facts and apply the law. Its method is the competitive system in the administration of law. T h e judge, the only impartial participant, is passive—listening, moderating, and passing on what is submitted to him. T h e lawyers are the active agents who investigate, present, and urge their views of the facts and the law. T h e position of the lawyer, too, is paradoxical. Though engaged in the public function of the administration of law, and its most ' CARDOZO, T H E

P A R A D O X E S OF L E G A L S C I E N C E

5

(1928).

THE NEED

FOR A

LAWYER

5

influential participant, he is privately retained by one side, and he aids, guides, and defends that side alone. While called an officer of the court, he is a partisan representative relying on private retainers for his livelihood. This is the adversary system of law administration. Through it, so we believe, "the interested striving of two contending parties is, in the long run, an infinitely better agency for the ascertainment of truth than any species of paternalistic i n q u i r y . " 4 Under this system something more is required than wise and just laws. Men expert in the law are needed to individualize the law, to apply it, to employ it, and even to develop it in concrete cases. In court, where the law is graphically applied, the work of lawyers makes this need manifest. In our country especially the need for lawyers in court cases is great. In no other nation does the representative of the public, the judge, have so limited a role in court, and the partisan representatives, the lawyers for the parties, so dominant a part. 5 In office matters the need for lawyers, though less obvious, is equally real. 8 Guidance is needed on legal rights and obligations so that the directives of the law may be observed and its potentialities utilized. In this field of work, too, the need for lawyers is ' M i l l a r , The Formative

Principles

of Civil

Procedure,

1 8 I I I . L. REV. I, 16

(i923)6 Mr. Joseph Choate drew a comparison in a speech to the English bench and bar: "In America we say that the counsel try the case and that the judge hears and decides; but, if I understand your common parlance here, the judge tries the case and the counsel hear and obey." See THE EARL JOWITT, THE STRANCE CASE OF ALGER HISS 6 ( 1 9 5 3 ) . • " [ I t ] too often is overlooked that the lawyer and the law office are indispensable parts of our administration of justice. Law-abiding people can go nowhere else to learn the ever changing and constantly multiplying rules by which they must behave and to obtain redress for their wrongs." Jackson, J., concurring in Hickman v. Taylor, j i g U.S. 495, 5 1 4 - 1 5 ( 1 9 4 7 ) .

6

THE NEED FOR A

LAWYER

greater in this country than elsewhere. Our malleable economic and social relations and the limited role of governmental functionaries result in delegation to individuals of a large share in determining their mutual relations under law. T h e individuals to whom these powers are delegated often seek new forms and methods rather than standardized types to fit their desires. In advising and in shaping and defining these relations to suit the infinite variety of human circumstances there is need for a designer and builder of legal relations. H e is the lawyer who can draw on and individualize the existing resources of the law to give dependable form to the plans of the parties, and who may with imagination and judgment develop new institutions of the law to meet changing needs. For larger reasons beyond the needs of the immediate parties it is important that lawyers be available to those who need them. Our polity is a legal polity, with many political issues taking legal form. At its beginning the American Revolution was justified because of the violations of the rights of the subject and citizen under the law, and the preliminary skirmishes that helped to shape and sharpen the issues were fought in courts of law. Today the protection of the citizen against government and of the alien as well are given reality by lawyers attacking the acts of government. T h e vague but powerful words "due process of law" and "equal protection of the laws" are defined and made concrete by lawyers and courts. Governmental controls over the economy, whether of big business or big labor, are exercised through law, and these conrtols, too, get their meaning and vitality through the work of lawyers. Beyond the representation of clients there are other responsibilities that the American lawyer has always carried. From the

THE

NEED

FOR A

LAWYER

7

earliest days of this nation he has aided in forming and guiding public opinion and thus in shaping the institutions of government. In largest measure he has manned the higher levels of the institutions he has shaped. Outside government, among a people w h o have achieved so much through private initiative, the lawyer still develops and guides innumerable institutions that in the fullest sense are public, though not political. These

institutions,

private in their administration but public and charitable in their purpose, have provided much of the leadership for the nation in education, the arts, and works of benevolence. T h e lawyer's part in these other responsibilities bears directly on our subject. T h e lawyer reshapes other political and social institutions so that they may better attain their social ends. Naturally it falls to him to reexamine his own institution, the profession of law, so that it, too, will perform its social purpose of providing Equal Justice Under L a w . It is not necessary here to argue for the rule of law or to discuss its elements. 7 W e wish to live under a rule of law and we know that one of its elements is a lawyer when needed. T h e need for a lawyer leads to the legal right to counsel. Yet the legal right alone is not enough. Here as elsewhere the law reflects social values but does not give full expression to them. T h e same ethical and practical factors that are the basis of the legal right g o beyond it and create the moral right to counsel in situations beyond the legal right. While it is important that there be the right to counsel under the law, it is even more important that counsel be available in fact. Before considering the latter and 7 For " a long and thorough endeavor to define and describe within the context of modern constitutional and legal practice the Rule of L a w , " see THE RULE

OF

LAW

IN

A

FREE

JURISTS, N E W D E L H I

SOCIETY, (Marsh

A

ed.

REPORT 1959).

OF

THE

INTERNATIONAL

CONCRESS

OP

THE

8

NEED

FOR A

LAWYER

more difficult aspect, it is well to look at the two leading cases that established the legal right to counsel under the Constitution of the United States. T h e case that marked a new beginning in the right to counsel was Powell v. Alabama,8 Several young Negroes were charged with the rape of white girls. With only the semblance of counsel, they were tried speedily and convicted. After affirmance of the conviction by the Supreme Court of Alabama, an appeal was taken on the ground the defendants had been denied due process of law. In the Supreme Court of the United States the determined lawyers then representing the accused were confronted with the anachronistic rule of the common law in England when our Constitution was adopted, which denied to one accused of felony the privilege of retaining defense counsel. They met the difficulty by an appeal to the Court's sense of injustice. They devoted the first half of their brief to a statement of the facts, which the dissenting judge had stressed in his opinion in the state court. T h e statement emphasized the swift course of events, the hostility of the community with its effect on the jurors, the trial judge, and evidently the local lawyers, and the lack of a vigorous and sustained defense. Though their statement of the facts was impressive, the lawyers for the accused were uncertain as to the precise ground of relief under the due process clause of the Constitution of the United States, and in their brief they gave the right to counsel the inconspicuous second place among the three grounds urged. Putting aside the other grounds, Mr. Justice Sutherland seized upon and declared the right to counsel. Adopting substantially counsel's statement of facts, his eloquent opinion made three points that "287 U.S. 45 (1932).

THE

NEED

FOR

A

LAWYER

9

bear on our subject. First is the basic character of the right to counsel: " [ T ] h e right involved is of such a character that it cannot be denied without violating those 'fundamental principles of liberty and justice which lie at the base of all our civil and political institutions.'" Next, the right includes two methods of satisfaction, "reasonable time and opportunity to secure counsel" of the accused's own choice, and, when counsel cannot be so secured, "an effective appointment of counsel" by the court itself. Finally, there is the vitalizing element of the attitude of counsel so essential to give meaning to the right, a "clear appreciation of responsibility or impressed with that individual sense of duty"; in short, zeal and devotion. The second creative case, Johnson v. Zerbst, arose out of the trial in a federal court of a young man on a counterfeit money charge.9 The accused had conducted his own defense for, so the record asserted, the trial judge had refused to appoint counsel for him. Unlike the Powell case, the Johnson case came up not on direct appeal or certiorari from the conviction but on habeas corpus proceedings brought months later. Again, able counsel for the defendant was uncertain as to the legal ground of attack. He relied on both the due process clause of the Fifth Amendment, which parallels the Fourteenth Amendment invoked in the earlier case, and also on the more specific language of the Sixth Amendment: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." The latter clause, though specific, might be confined by its history to the mere privilege of the accused to employ counsel. In its brief the government admitted inferentially the unfairness of a failure to appoint counsel when needed and indi• 3 o 4 U.S. 458 (1938).

10

THE NEED

FOR A

LAWYER

catcd that the unfairness rarely occurred, for it added as an appendix a letter from Attorney General Cummings to all U.S. Attorneys directing them to see to it in every case that counsel was appointed unless appointment was waived by the accused. The Court, through Mr. Justice Black, chose the constitutional provision and the meaning that would give the broadest scope to the right in the federal courts. It relied on the Sixth Amendment (interpreted to mean that what the Attorney General directed the U.S. Attorneys to do was a constitutional command to the courts and a right of the accused): counsel must be provided when the accused has not himself retained counsel or intelligently waived the right. The Court avoided the procedural objection that the attack should have come through appeal by holding that the failure to comply with the constitutional requirement of counsel deprived the court of jurisdiction, so habeas corpus would lie: "If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release by habeas corpus." These are great cases. Their spirit and their eloquent language continue to inspire and encourage the bar in providing a lawyer when needed. Yet they go only a small part of the way. The second of them applies to criminal cases in the federal courts alone. The first is limited, so the majority of the Supreme Court have so far held, to those state criminal cases in which exceptional conditions make the need for counsel especially important. 10 Both are confined to criminal cases. Neither one touches civil 10 See the outline of views of members of the Court given by Justice Reed in Uveges v. Pennsylvania, 3 3 5 U.S. 4 3 7 , 4 4 0 - 4 1 ( 1 9 4 8 ) . Much criticism has been directed at the limited extent of the constitutional protection. F o r a vigorous

THE NEED

FOR A

LAWYER

II

eases in court, much less that largest area of the lawyer's work, office practice. It is unnecessary here to g o into the intricacies and developments of the legal right to counsel in criminal c a s e s ; 1 1 the scope of this right under the federal and the state constitutions, and under federal and state statutes, rules of court, and customary practices; the time when counsel shall be provided; and the professional qualifications of counsel. 1 2 N o r is it necessary to consider the development of accompanying rights of indigent defendants as the waiver of court costs, the privilege of having a copy of the record provided, and the summoning of witnesses. T h e legal right to counsel has developed as a part of the broader protection of civil rights, and at times the justices are not agreed on whether the right to counsel or some other right is involved. 1 3 Availability of counsel in fact is the center of our consideration. T h i s discussion is not so presumptuous as to propose a simple and easy method of providing counsel. T h e r e can be no simple and easy method of dealing with constantly changing complex situations. It may be of some use, however, for us to look again at this attack on the limitation, see Kamisar, Beits v. Brady Twenty "Years After: The Right to Counsel and Due Process Values, 61 MICH. L. REV. 2 1 9 (1962). After these lectures were given the Supreme Court of the United States, unanimously overruling Betts v. Brady, 3 1 6 U.S. 455 (1942), held that the appointment of counsel for an indigent defendant in a criminal case is a fundamental right essential to a fair trial and is made obligatory upon the states by the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335 (1963). 11

The

COURTS

subject

is d i s c u s s e d

in

BEANEY,

THE

RIGHT

TO C O U N S E L

IN

AMERICAN

(1955).

u See Allison, He Needs a Lawyer Now, 42 U. AM. JLD. SOC'Y. 1 1 3 (1958). " A n illustration is Spano v. New York, 360 U.S. 3 1 5 (1959), which involved the use of a confession of murder obtained after prolonged interrogation in the absence of counsel the defendant had requested. Though the justices were unanimous in reversal, some members stressed the extortion of the confession, others the denial of "the absolute right to counsel."

12

THE NEED

FOR A

LAWYER

abiding need, to take heart f r o m a reminder of achievements of leaders in the past and the present, and to consider some recurring situations in which the need for counsel requires continuing effort. T h r o u g h steady effort our profession may develop methods which will not merely recognize the need for counsel but satisfy it. Five situations will be considered in which renewed efforts are essential to meet the need for counsel. T h e five concern the hated, the poor, the middle classes, specialized legal services, and the public interest. For two of the five—the hated and the poor— the organized bar has already done much. A s to two others—the middle classes and the clients needing specialized services—the organized bar has been slow and hesitant, and accepted professional standards may impede effective action unless reconsidered. On the fifth, the public interest, there is wide recognition of the need but uncertainty on how to meet it in the great variety of situations in which it may be involved.

J> THE

HATED

A fair trial for a hated defendant is persistently difficult. The difficulty and its persistence are made vivid in Sir John Macdonell's eloquent book Historical Trials. It is tempting to dwell on the names of the accused whose trials he describes, many great and all of them appealing. It is wiser to take note of the societies in which the difficulty reappeared. They were not barbarians. They were societies preeminent in the development of our civilization: ancient Greece, medieval Italy, modern France. Any of us could add instances from the common law, from England and from our own country. The roots of the difficulty in assuring a fair trial are ignorance, fear, hatred, and dread. There is ignorance of the rule of law and its importance; even the educated are ignorant of the adversary system in the administration of law and of the necessity of a zealous lawyer for a fair trial under that system. Even more harmful when the accused seems to threaten an established order is ignorance of the inevitability of change and of advocates of change. Along with ignorance go fear and hatred. There is fear of the accused and hatred of what he represents and what his asserted offense implies. There is consequent dread by lawyers that the fear-engendered hatred of the accused will be visited upon his advocate. The distorting effect of fear is portrayed in the book mentioned:

THE

HATED

But—it is one of the chief lessons to be derived from these studies —fear brings back the primitive conception of the function of courts; not necessarily, or indeed often, personal fear, but fear of changes; fear on the part of the upholders of the old order; fear of the effects of the discoveries of new truths; fear of emerging into the full light. Where such fear is justice cannot be; a court becomes an instrument of power; judges are soldiers putting down rebellion; a so-called trial is a punitive expedition or a ceremonial execution—its victim a Bruno, a Galileo, or a Dreyfus. 1 T o recognize ignorance, fear, hatred, and dread as facts is not to yield to them. Rather it is the first essential in combating and overcoming them. In regimented or revolutionary times the threat to the lawyer may come from the government and its representatives. In the Province of N e w Y o r k of the middle 1700s it was the royal officials who so threatened the local bar that Peter Zenger, editor accused of circulating seditious matter, went to another province to find a lawyer, Andrew Hamilton, who would make the necessary defense. 2 In France fifty years later Malesherbes, who represented the K i n g before the revolutionary tribunal, paid for his devotion by being forced to witness his grandchildren and then his daughter go to the guillotine before his o w n turn came. T o day it is the totalitarian countries whose officials make dangerous the vigorous representation of the hated. In this country the threat to lawyers does not come from government or officials. It comes from the community which may turn its hatred of the accused on his counsel, with consequent loss to the lawyer of standing, clients, and livelihood. T h e threat M A C D O N E L L , H I S T O R I C A L T R I A L S 86 (1929). " T h e story of the case is well told in Lewis, The Right to Complain: Trial of John Peter Zenger, 46 A.B.A.J. 27 (i960). 1

The

THE

HATED

'5

is not groundless, however much the point of impact of the hatred varies with the community and with groups within a community. The directions of efforts to counteract the threats and the dread may also vary. T w o directions are considered here, one within the profession, the other beyond it. Within the profession mention will be made of the judge, the organized bar, and the individual lawyer. In a criminal case the judge has the duty of seeing that the accused has counsel. He may assign lawyers in a way that makes clear the importance of representation by counsel, say, through the designation of lawyers of standing who are beyond suspicion. He may also make the appointment in a way that splinters and blunts the public fear and hatred and keeps it from converging on one man. Appointments in this way have been made in conspicuous prosecutions of alleged subversives, when the judge with the aid of a bar association called on law firms to designate one or more of their members to represent the several defendants and then appointed the designated men as counsel. The collective appointment, however, must not impair the sense of individual responsibility of each lawyer to his particular client that is of the essence of the right to counsel. At the end of the trial the judge by a word of praise or merely of recognition may again make explicit the duty of the lawyer and his essential part in the administration of law. Going beyond the designation of counsel, the judge may subordinate the usual standards of the profession when they come into conflict with the more fundamental matter of need for zealous counsel. In re Ades is an illustration.3 Three Negro men had ' 6 F . S u p p . 467 ( 1 9 5 4 ) . T h e principle that the need f o r professional services may

outweigh

the p o l i c y against solicitation

of

cases w a s

stated by

the

same

i6

THE

HATED

been indicted in Maryland for crimes of violence against white persons. A young lawyer who was a Communist urged the accused to accept him as their counsel believing, as the court stated, "that it is difficult in the courts of this country to secure full recognition of the rights of laboring men or of members of inferior races, because judges and other officials are usually chosen from the ruling or favored classes." T h e young lawyer was accepted by the accused and was zealous in the defense. T w i c e he secured reversals of conviction of one of the accused, each time on grounds that were disagreeable to the community and that a more experienced local lawyer assigned as counsel by the trial judge failed to press. A f t e r the three cases ended the young lawyer was brought before the federal court in proceedings for disbarment because of his conduct in the state court cases. T h e federal judge, Judge Soper, dismissed the portion of the charges based on solicitation of practice. 4 H e recognized the wisdom of the professional standards which forbid the "direct solicitation of business for gain by an attorney." Y e t recalling outstanding cases of earlier days in which noted counsel had volunteered their services in the interest of justice, he held that the facts took the case outside the usual prohibition and stated: Notwithstanding these salutary rules, it cannot be laid down as an inflexible maxim that a lawyer may never volunteer his services to judge in a later case: "Indeed the exclusion of lawyers when acting for benevolent purposes and charitable societies, as distinguished from business corporations, from the restrictions imposed by the Canons of Professional Ethics has long been recognized in the approval given by the courts to services voluntarily offered by members of the bar to persons in need even when the attorneys have been selected by corporations organized to serve a cause in a controversial field." National Association for the Advancement of Colored People v. Patty, 1 5 9 F. Supp. 503, 5 3 2 ( 1 9 5 8 ) . See also Gunnels v. Atlanta Bar Association, 1 9 1 Ga. 366, 1 2 S.E.2d 602 ( 1 9 4 0 ) . ' T h e lawyer was reprimanded because of bitter and unfair attacks on the courts and offensiveness to opposing counsel.

THE

HATED

l7

a litigant, where the litigant is in need of assistance, or where important issues are involved in the case; and this may be so even though questions of a a controversial or political character are at stake. The dominance of the need for zealous counsel over the usual standards of the profession was reaffirmed this year by the Supreme Court of the United States.5 The case involved the application of a Virginia statute to the National Association for the Advancement of Colored People in its work of encouraging and carrying forward litigation directed against segregation in public schools. T h e statute, cast in a form that condemned the solicitation of practice and the conduct of cases by a lay intermediary, was defended by the state as a regulation of the standards of the legal profession. The majority opinion of the Court, in condemning this application of the statute, cites with approval the Ades case and other opinions which upheld "truly nonpecuniary arrangements involving the solicitation of legal business." The organized bar, as well as the courts, has long realized the importance of seeing to it that the hated have counsel. In the oath of admission to the bar recommended by the American Bar Association, the young lawyer pledges: " I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed. . . ." The Cold War has sharpened the feelings against accused subversives and increased the difficulties of their counsel. A committee of the Association recognized "that some affirmative assistance from the organized bar is needed to insure public understanding and continued vitality in the bar's discharge of its duty." 6 In " N a t i o n a l Association for the Advancement of Colored People v. Button, 3 7 1 U.S. 4 1 5 ( 1 9 6 3 ) . " 7 8 A . B . A . REP. 304, 307 ( 1 9 5 3 ) .

18

THE

HATED

1953 the Association adopted a resolution proposed by the significantly named committee, the Special Committee on Individual Rights as Affected by National Security, of which Mr. Whitney Seymour was the Chairman.7 The resolution reaffirms three principles directed, respectively, to the accused, the bar, and the public. For the accused there is "the right of defendants to the benefit of assistance of counsel." On the bar there is "the duty . . . to provide such aid even to the most unpopular defendant." The accused's right and the bar's duty have as a corollary a third principle as to the public, that is, "public acceptance of the correlative right of a lawyer to represent and defend, in accordance with the standards of the legal profession, any client without being penalized by having imputed to him his client's reputation, views or character." The resolution stated that the Association would support any lawyer against criticism or attack for this representation if he had behaved in accordance with the standards of the bar, and it concluded with the request that state and local associations cooperate fully in implementing these principles. Some state and local associations have responded well in cases of prosecution of alleged subversives by seeing to the appointment of counsel for the defendants.8 However, there are still lapses. It has been urged that the bar associations be more alert to the need and see that counsel is provided, especially when violation of civil rights is charged.9 No matter what the judge or the organized bar may do, in the 7 8

ibid. Mr. Peter Holme has described such a response by the Denver Bar Association.

S e e STONF., L E G A L EDUCATION- AND P U B L I C R E S P O N S I B I L I T Y

"See Rostow, The Lawyer and His Client, quoted

in

COUNTRYMAN,

(1962,

mimeo.)

THE

LAWYER

IN

48

A.B.A.J.

MODERN

151-56

25, 146,

SOCIETY

ch.

(1959). 149-51 VI,

at

(1962), 1 5 0 fT.

THE

HATED

J9

end the reliance is on the individual lawyer. The rest of us may urge and applaud. It is he who bears the heat and burden of the case. It is so when a nation is stirred by great conflicts and emotions, as, to name but a few, when Erskine defended T o m Paine during the French Revolution, when Medina defended an accused accomplice of Nazi saboteurs during World W a r II, and when Donovan and Debevoise defended a Russian spy during the Cold W a r . It is no less so when an obscure lawyer in a country town defends a member of a minority group accused of a grave crime. W h a t should the lawyer do at such a trial? Should he dissociate himself from his client's views by showing that he takes the case only because of professional duty? Or should he keep personal feelings and professional duty to himself and let the jury believe that this client is on the same footing with him as any other client? The answer to these questions of taste and tactics may vary with the judgment of the particular lawyer or, perhaps, according to the professional standards, such as the freedom of a lawyer to decline a case and the closeness of the relation of the advocate to the client, in the place in which the case is tried. In England, where the barrister is chosen by an intermediary lawyer, the solicitor, the barrister is under professional obligation to take any case tendered him and his part is essentially that of the zealous spokesman. In the United States the lawyer is chosen and retained by the client (except where the court appoints h i m ) , and he is free to accept or to decline a case tendered. W h e n he accepts he is counselor and confidant in preparation, as well as advocate at the trial. T w o cases illustrate different answers given to the question. When the French Revolution hardened the conservative temper

THE

20

HATED

in England, Erskine was briefed as counsel for T o m Paine, a revolutionary three times over, in America, in France, and then in England. Erskine stood by his acceptance of the brief despite the personal remonstrance of his patron, the Prince of Wales, and of one who would precede him as Lord Chancellor. 10 At the trial he made clear enough his disagreement with the views his client was charged with expressing. But he went on to state his professional duty and the vital bearing of the performance of that duty on a fair trial and so on the rule of law. His often-quoted words are still the foundation of the duty of the English barrister to accept any case that merits the judgment of a court: I will forever, at all hazards, assert the dignity, independence and integrity of the English Bar, without which impartial justice, the most valuable part of the English constitution, can have no existence. From the moment that any advocate can be permitted to say that he will or will not stand between the Crown and the subject arraigned in the court where he daily sits to practice, from that moment the liberties of England are at an end. 11 Some

years later a deranged man attempted to murder K i n g

George III. When charged with the crime and allowed to choose his advocate, he chose Erskine, and the judges assigned Erskine the task of his defense. H e began his successful defense on the ground of insanity with these words: "Gentlemen of the jury, the scene in which we are engaged, and the duty which I am not merely privileged but appointed by the court to perform, exhibits to the whole civilized world a perpetual monument of our national justice." 1 2 "CAMPBELL, 11

LIVES

OF

THE

LORD

1 S P E E C H E S OF LORD E R S K I N E

"STRYKER,

19

FOR THE D E F E N S E 3 7 1 ,

CHANCELLORS (High 374

ed.

ch.

1876).

(1947).

C L X X X

(7th

ed.

1878).

THE

HATED

21

T h e other case is best described in the words of the American lawyer, Mr. Harold (now Judge) Medina: During the last war I was assigned as counsel to defend a man named Anthony Cramer, who was charged with treason against the United States by reason of certain dealings he had with some of the saboteurs who came over from Germany . . . we came to the end of the trial, the summations were over, Judge Henry W . Goddard had concluded his charge to the jury, who were just about to retire for their deliberations. T o my surprise Judge Goddard asked me to rise and proceeded to praise me for having defended Cramer so ably, pointing out that I was assigned counsel and that I had in effect performed a patriotic duty. . . . I had made up my mind that I would not say a word to the jury about being assigned counsel, feeling that my client, although poor and destitute, was entitled to the advantage of everything that went with the fact that I was his lawyer . . . and so I told Judge Goddard that I did not wish to seem ungracious but that I must respectfully except to his statement, adding that I thought he had no right to mention this fact to the jury. . . . Both in the Supreme Court and in the Circuit Court of Appeals I urged as a basis for reversal the exception to which I have referred, but in none of the opinions of either court was the subject mentioned. 13 T h e availability of lawyers for the unpopular is important outside criminal law and even before charges are filed. A n illustration of the wider importance is the federal loyalty-security program, under which a finding of disloyalty or danger to national security may disqualify a person for employment in many areas of government service and of industry. A bar association " M e d i n a , Courage and Independence

at the Bar, 25 OHIO BAR 381

(1952),

reprinted in VIRTUE, JUDCE MEDINA SPEAKS, 4 9 - 5 0 ( 1 9 5 4 ) . T h e case is reported

in Cramer v. United States, 325 U.S. 1 ( 1 9 4 5 ) .

THE

22

HATED

committee which studied the program under the Chairmanship of Mr. (now Judge) Dudley B. Bonsai, carried over to this field the conclusions of the American Bar Association report already discussed, and recommended that bar associations make provision for adequate representation of employees. 14 It went further and urged that the employees have effective representation at the early screening stage and that cleared employees be reimbursed for their reasonable attorneys' fees. 15 A lawyer's representation of a hated accused may have results far beyond the protection of the accused individual. His work shows the rule of law in action and embodies it in a vivid form all men can understand. A trial in its concrete embodiment of an individual and his struggles has the same advantages that a play or a novel has over a general discussion of ethics or political theory. A man who observes or even only reads about a defendant at bay will more readily think to himself, "There but for the grace of God, stand I." He will perceive that what seems guilt may be innocence, and that even guilt deserves a fair hearing on its measure and punishment. The concrete case is the more telling because most of us, as Lord Haldane said of Lloyd George, think in images rather than in concepts. We can grasp the example of a lawyer defending a poor devil against the power of the state and the hatred of the community—we may even identify ourselves with the poor devil or with his defender—when we would be unmoved by the abstract conception of a fair trial. If radio and television are added to the public media that depict trials, as in the McCarthy hearings, a trial will make vivid, past all misunder14

REPORT,

SPECIAL

COMMITTEE

OS

THE

FEDERAL

LOYALTY-SECURITY

OF T H E ASSOCIATION OF T H E B A R OF T H E C I T Y OF N E W Y O R X 1 5 ,

11

Ibid.

180-83

PROGRAM (1956).

THE

HATED

23

standing, the social value of the lawyer's representation of the accused. The lawyer's work may have a still broader effect. It may help to halt the political movements which hate inspires. Erskine's defense of petty subversives of the left did more than give aid to the accused, and more even than fix the standards of the English barrister in representing the hated. It checked a white terror in England that, as an historian says, might have parallelled the red terror across the Channel. 18 T h e defense of the Socialist members of the New York Assembly by Mr. Charles Evans Hughes and his fellow committeemen of the Association of the Bar did much to halt the unreasoning reaction in our country after World War I . " Our country needs now more than ever this lesson of fairness for the nonconformist and the hated. For over three centuries it has taken in people from many lands, it has made them into a nation, and it is on the way to making them into a people. Despite the diversity in our backgrounds many of us have distaste and intolerance for the off-type. In earlier contests we have shown dash and spirit, but also haste and eagerness to get over the emergency and back to normalcy, a hankering for easy and quick solutions of complex and lasting problems. There is truth about some of us in the vaudeville skit of President Theodore Roosevelt who according to report liked to say, "My policies are simple." The actor, evidently a Democrat, had him continue: "My policies M " T h a n k s t o E r s k i n e ' s persuasive eloquence, twelve T o r y j u r y m e n a c q u i t t e d H a r d y a n d his fellow prisoners on t h e capital c h a r g e , a n d r e m i n d e d t h e gove r n m e n t t h a t t h e m e t h o d s of Robespierre w e r e not w a n t e d over here. . . . T h i s timely check saved E n g l a n d f r o m a reign of terror and perhaps u l t i m a t e l y f r o m

a

retributive

1952).

"See

revolution."

T R E V E L Y A N , HISTORY

OF E N ' C L A N D b k .

C H A F E E , F R E E S P E E C H IN T H E U N I T E D S T A T E S c h . V I

V,

ch.

(1941).

4

(1926,

THE

24

HATED

are simple. T h e y are so simple the simplest mind can grasp them. In fact, the simpler the mind, the more easily it grasps them." Our era is marked by diversity and change. T h e sciences and their derivative technologies are transforming the patterns of our lives, as Professor Patterson reminded us last year, 1 8 and are bringing us closer to other societies very different f r o m our own. These other societies, whether newly

developing

peoples

or

peoples who are the bearers of older cultures f r o m which we borrowed much in the long past, share with us a common failing: each society takes itself as the measure of man. In the years ahead w e shall have to live under new conditions and much closer to other societies, and rarely on our own terms. Our era has old gospels, too, in aggressive and strident forms. There are apostles of the right who would have us stand still in the perfect present or go backward to the still more perfect past. There are apostles of the left who would make over our untidy system according to their neat plans in their own time, a prospect that has a special appeal to the young. T h e r e are the lunatic fringes of the right and of the left, to be taken for granted and allowed for in any democratic society. In the long contest we are in we shall need the qualities of endurance and sustained intelligence. W e are not a monolithic people in a static society, but a people holding as of right a variety of views in a fluid society. Most of us will adhere to the counsels of moderation without which a society cannot long hold together. Yet we shall have, and mayhap at times need, the defiant soul who denounces evil, despises moderation, and would overturn and rebuild. H e is an agitator and reformer w h o occasionally comes to be a prophet and saint. T h e present finds it difficult to "PATTERSON,

LAW

IN

A SCIENTIFIC

ACE,

ch.

I

(1963).

THE

HATED

25

get along with him. The future may think it impossible to have moved ahead without him. He is condemned by the crowd, but he is protected by the Bill of Rights and by the lawyers who give it meaning and vitality. What has been said so far is orthodox doctrine, even though the doctrine will not be translated into practice without unremitting effort. T h e fairness of a system of law administration is ordinarily looked at from the viewpoint of the accused, as it has been in what I have said, and the emphasis is on the right of the accused to counsel who are zealous in his behalf. There is, however, another ever-present aspect of fairness in law administration that is not made explicit by the orthodox statement. It is fairness to the public, to the state whose law the defendant is charged with violating. This other aspect of fairness is referred to by Chief Justice Warren in a case involving the use of a confession obtained after prolonged interrogation in the absence of counsel : " A s in all such cases, we are forced to resolve a conflict between two fundamental interests of society; its interest in prompt and efficient law enforcement, and its interest in preventing the rights of its individual members from being abridged by unconstitutional methods of law enforcement." 19 T w o situations in which the second aspect of fairness may be threatened deserve consideration here: one concerned with law administration on the ordinary level and one with law administration on a high political level. The administration of law may be impaired and distorted by a procedural system that delays and halts its operation and by counsel who are overly zealous for the accused. During World War II the judge presiding over the acrimonious and bitterly " S p a n o v. New York, 360 U.S. 3 1 5 ( 1 9 5 9 ) .

THE

26

HATED

fought trial of a group of right-wing defendants died under the strain. In the most noted trial of Communist leaders after the W a r , the trial judge found that the defendants' counsel sought to disrupt the trial and after the verdict was rendered he punished them for contempt. 20 T h e controversy went through the three levels of the federal courts three times: first, the prosecution itself, then the contempt proceedings against the lawyers, and,

finally,

disciplinary proceedings against them. Throughout the opinions of all the courts there is manifest a solicitous desire to preserve the zealousness of counsel for unpopular defendants. Some of the opinions express the accompanying need to maintain order in the course of the trial. In the case which upheld the finding of contempt Mr. Justice Jackson strove to mark the proper balance: The nature of the [adversary] proceedings presupposes, or at least stimulates, zeal in the opposing lawyers. But their strife can pervert as well as aid the judicial process unless it is supervised and controlled by a neutral judge representing the overriding social interest in impartial justice and with power to curb both adversaries. 21 Continuing, he showed the need for restraint by or on lawyers for each side: The rights and immunities of accused persons would be exposed to serious and obvious abuse if the trial bench did not possess and frequently exert power to curb prejudicial and excessive zeal of prosecutors. The interests of society in the preservation of courtroom control by the judges are no more to be frustrated through unchecked improprieties by defenders. In our "contentious craft" the line betwen zealousness and ex30 21

United States v. Sacher, 9 F . R . D . 394 ( 1 9 4 9 ) . Sacher v. United States, 343 U.S. 1 , 8 ( 1 9 5 2 ) .

THE HATED

27

cess is dim. M y students have often suggested that the advocate for the unpopular should be given the benefit of dimness so as to redress the inherent imbalance against his unpopular client. W h e n the accused personifiies one side of clashing political issues, the advocates may seek to identify the case with this clash of issues. There is a limit on the appeal to emotion by the prosecution. 22 Yet surely the counterappeal by the counsel for the accused would be wholly proper. N o one would condemn what Erskine did to identify his client with the cause of liberty of a subject. In the final proceeding against the counsel for the Communist leaders the Supreme Court of the United States reversed a lower court's order of permanent disbarment of the defendants' leading counsel because it was "unnecessarily severe." 2 3 W e may believe that the Court was influenced by concern over availability of counsel for those accused of subversive activities and by the desire not to magnify contemporary hazards in the administration of justice. In civil cases there is the adage, "Justice delayed is justice denied." In criminal cases the injury done by delay to the effective administration of law or at times to the accused has not had the attention it deserves. T h e distortion of justice worked by an overly solicitous procedural system is illustrated by the case of Caryl Chessman, w h o was kept under the shadow of death for twelve years. 24 T h e International Commission of Jurists, which seeks to 23

Viereck v. United States, 3 1 8 U.S. 236 ( 1 9 4 3 ) . " S a c h e r v. Association of the Bar of the City of N e w Y o r k , 3 4 7 U . S . 388 ( 1 9 5 4 ) . See also In re Isserman, 348 U.S. 1 ( 1 9 5 4 ) setting aside the order of disbarment in In re Isserman. 345 U . S . 286 ( 1 9 5 3 ) . 34 A chronological table of measures taken in the case from the commission of the alleged crime in January, 1 9 4 8 , to the execution in May, i 9 6 0 , when the indication of a one-hour reprieve came forty-five seconds too late, is given in KUNSTLER,

BEYOND

A REASONABLE

DOUBT?

292-98

(1961).

THE

28

HATED

strengthen the rule of law throughout the world, commented in its Bulletin on two aspects of the case. First, it referred to the fairness of the procedure, mentioning that "an impressive survey of legal remedies . . . listed in an appendix to Justice Douglas's dissenting opinion . . . supplied adequate evidence of procedural fairness in the Chessman case." Y e t its final conclusion was that use of the procedural safeguards had defeated the purpose of the legislators and made Chessman undergo double punishment : Many jurists—American as well as non-American—were startled and even shocked by the realization that the delay caused by an elaborate use of legal remedies has in the end produced the opposite of the legislator's intent. While offering to the convict the fullest protection of the law, the procedure enabled him to defer the expiation of his crime until both to a large section of the public and to Chessman himself the execution came to mean a vindictive act of a society to whom the criminal's debt had already been paid in the length of his detention, in the recurrent fear of impending death and in the resourcefulness displayed in his own defence. . . . There remains the disturbing question whether, after exacting its due after twelve years of jail and legal controversy, summum jus has not, to quote the ancient Roman Law axiom, resulted in summa injuria.25 Surely here is a matter of criminal law administration which calls for study by the bar and action by the legislature. W h e n a solicitous system of law administration gives opportunities for repeated delays, the ordinary crime is

troubling

enough. F a r more troubling is the political case, which is instituted or which is handled by counsel for one side or the other not so much to secure the conviction or the acquittal of the particular defendant, but to advance some high political end of " B U L L . INT'L. COMM. JURISTS NO. I I , at

60 (i960).

THE

HATED

2

9

change and of revolution or counterrevolution. Each one of the elements of the case may have a political motivation: the law on which the prosecution is based, the accused and his conduct, the lawyer for the defense and his tactics, the prosecution and its methods, the judge and his actions, and the public and their attitude. The possible counterrevolutionary nature of the law itself has two outstanding illustrations in our history—the alien and sedition laws of the 1790s and the anticommunist statutes of recent years. The first of these brought impassioned public controversy and contributed to the fall and extinction of the Federalist Party; the second has led to continuing public differences and to sharp division in the Supreme Court over their constitutionality. The laws themselves are not our principal concern here. The trial is the center of our consideration. T h e political trial is disturbing because in all its elements it differs from our ideal of an adversary proceeding. This ideal assumes that the accused and his counsel are seeking acquittal, the prosecution is seeking an adjudication on the narrow legal issue, the judge is impartial, and public feelings are kept out the case. Political trials keep recurring. In times and places remote from us there were the two most famous trials recorded by history or tradition—the trials of Socrates and of Jesus. In our own times, but in other places, there were the Reichstag fire trial in Nazi Germany, the Communist purge trials, the hippodrome trials of the Castro regime in Cuba, and, of a wholly different tone, the trial of the pacifist agitator Gandhi. Our own history has been studded with such trials. James Otis used court attacks on the writs of assistance, as he employed his pamphlets, to inflame the resistance of the colonies to the mother country. T h e fugitive

THE

30

HATED

slave law cases were effective means of stirring antislavery sentiment. T h e congressional hearings on Communists have been employed to expose the Party and its members and sympathizers. In our day the sit-in demonstrations and the accompanying arrests, prosecution, and publicity are a form of attack on racial segregation. Let us consider some of the elements of a political trial and how badly they fit into our traditional values. Begin with the accused. In the ordinary case it is assumed he is seeking acquittal above all other things. In the political trial it may be quite otherwise, as Socrates and Jesus illustrate. Socrates, accused of corrupting the youth and certainly guilty of disturbing inquiry into established ways, sought acquittal only on his own terms. H e urged that he was entitled to support at the public expense rather than condemnation, and would not accept freedom through flight. Jesus, as an ancient tradition of sacrifice has it, was fated to die here so that men might live hereafter. H e did not seek to escape his fate even from Pilate, "the local commander of the military government of a foreign occupation power." T o take a modern illustration, Gandhi, in stating the case in his campaign of civil disobedience, sought the severest punishment and urged upon the judge the reasons for it. There are other less exalted examples of accused so convinced of the importance and justice of the cause that they insist on the trial being so conducted as to advance the cause regardless of their personal fate. They use the witness stand as a forum for the statement of their views and the trial as a means of exposing the system they attack. They accept conviction content in the knowledge that the death of martyrs is the seed of the Church. H o w can our law deal with and hold within bounds defendants who begin by rejecting the purposes of the administration of law

THE

HATED

31

and the whole system of which the law is a part? A partial answer was given in the case of the prosecution of the Communist leaders when one of the accused sought, at the end of a ninemonths trial, to substitute himself for his able counsel in addressing the jury. T h e trial judge denied the permission. The action of the trial judge in denying the request was affirmed by the Court of Appeals for, as Judge Learned Hand wrote: "it is difficult to assign any other motive for his request than that he wished to make a flaming address to the jury which would have reverberations not only inside but outside the court room." 26 The lawyer for the defense may share the views of his client and may seek to conduct the case for the larger ends they have in common. He may speak over the heads of the judge and the jury to the public in language of the cause he would advance. What an unequaled opportunity when the cause is embodied in the drama of a trial, and when the drama is covered by the press and possibly by radio and television! The lawyer may even spurn lesser grounds of acquittal and, with or without the client's consent, help to secure conviction and execution. What should be done with such a lawyer? Here we are on firmer ground than when dealing with the client himself, for the lawyer is one to whom the profession's admonitions of loyalty and zeal are directed. Certainly the lawyer, guilty of disloyalty to his client because of loyalty to a larger cause, would under our standards deserve the harshest discipline. This is made explicit in the Ades case, discussed above, in which Judge Soper stated of the Communist counsel that if he offends, "by subordinating the interest of his client to the interest of the organization employing him, the remedy of proper discipline is in the hands of the court." 2 7 " U n i t e d States v. Dennis, 183 F.2d 201, 233 (1950). "In re Ades, 6 F. Supp. 467, 477 ( 1 9 3 4 ) .

THE

32

HATED

T h e prosecutor may seek to use the case to pillory the cause rather than to try the defendant, or he may employ unfair means to tie the accused to an unpopular cause. There is many an instance of this sort. Coke's unfairness in prosecuting Raleigh is not obscured by his later services in the cause of Parliament against the K i n g . Yet in England the professional attitude has been transformed. A passage from a book on law reform in England in the 1800s indicates both the nature and the extent of the change: Of all the mighty changes that have taken place in the nineteenth century, the greatest change has been in the tone of the administration of both the civil and the criminal law. The manners of our law courts have marvelously improved. . . . Now the attitude and temper of her Majesty's judges towards parties, witnesses, and prisoners alike has wholly changed, and the Bar too behave like gendemen. 28 In this country also w e are clear on how to deal with such a prosecutor and such a prosecution. D u r i n g W o r l d W a r II the Supreme Court reversed the conviction of a supposed sympathizer with the enemy country because the prosecutor's remarks were made to arouse passion and prejudice at "a time when passion and prejudice are heightened by emotions stirred by our participation in a great war." 2 9 A n d it was a case arising from the bombing of a preparedness parade immediately before World W a r I that established a constitutional basis for the prosecutor's increased obligation of candor. 30 T h e judge too, most unfortunately, may be affected by the political nature of the trial. In this country w e do not have judges ° * W . Blake Odgers, in A CENTURY OF LAW REFORM 4 1 - 4 2 Viereck v. United States, supra note 19. " M o o n e y v. Holohan, 294 U . S . 1 0 3 ( 1 9 3 5 ) . 29

(1901).

THE

HATED

33

seeking the favor of a royal master, but we do have judges whose terms of office arc short, who arc dependent on the people or on political leaders for their reelection, and who desire their favor. Judges would be more than human if, in time of strong popular feeling, they did not recognize this political fact and if some of them were not strongly tempted to yield to it. Yet strength to be impartial finds support in the personal standards of the individual judge and in the standards of our judiciary set out in the Canons of Judicial Ethics. Fairness by the judge may be enforced by the vigor of counsel for the defense, and by the independence of an appellate court more remote from the political feeling that bore down on the trial. T h e most harmful form of political trials in recent years has been by legislative committees of inquiry. Politicians were as bold as lions against little groups known to be as weak as they were unpopular. T h e frequent abuse of power by committee chairmen or counsel led to demands for fair procedure. T h e variety of the resulting correctives is a tribute to the resiliency of our political system. T h e courts have held the committees within the bounds fixed by the Constitution of the United States or set by the legislative resolutions creating them. Some committees have adopted appropriate rules for their guidance, and at least one state legislature has passed a statute dealing with the subject. A special committee of the American Bar Association proposed a uniform code of investigative procedure embodying the requirements of fair play and due process. And most important of all some committee counsel moved by a sense of professional restraint and fairness have taken special precautions to avoid unfairness. I return to the general question, how shall we deal with a political trial? One thing we cannot do and should not foolishly

THE

34

HATED

try to do is prevent political trials altogether. Social and political changes will always have their vehement advocates, and vested interests will endeavor to keep things as they are. T h e spirit of criticism, essential to change and advance, pushes a f e w into revolution. T h e spirit of conservatism, needed for continuity, pulls more back to blind reaction. Some advocates of change will be so certain of infallibility that they will try to upset the existing order to make their dreams come true. Trials are dramatic and will be seized on as a cheap and ready source of publicity for persons and causes. W e shall have to accept these people and their use of trials as a recurring part of the order of nature, and be ready to deal with them according to our political and legal ideals. What those ideals call for is clear. W e will do our utmost to handle a political trial as any other trial. W e will seek to eliminate the political elements by reducing the case to its legal issues and confining the case and all the participants to those issues. In the most publicized case in our history Justice Holmes said: " I do not consider that I am at liberty to deal with this case any differently from the way in which I should treat one that excited no public interest and that was less powerfully presented." 3 1 A recent wide-ranging book, dedicated " T o the Past, Present and Future Victims of Political Justice," points out that in the competition for political power the resort to courts is not the first or the most frequent form of struggle. 32 Y e t in many countries, notably our own, the other forms of political struggle may be challenged in the courts. W h a t should be the guide for 31

Memorandum of Mr. Justice Holmes, V THE SACCO-VANZETTI CASE 5 5 1 6 - 1 7

(1929);

MICHAEL

6C W E C H S L E R ,

CRIMINAL

LAW

(1940). "

KIRCHEIMER,

POLITICAL

JUSTICE

3

(1961).

AND

ITS

ADMINISTRATION

1230

THE

HATED

35

the courts in determining the validity under law of these other forms? No single answer can be given. T h e problem and its setting vary widely in place and in time. Professor Noel Dowling has told of his meeting with lawyers from other countries in drafting laws to protect human rights. H e outlined for the conferees the tests being worked out by our Supreme Court, including Justice Holmes' language, "clear and present danger." One of the conferees countered by saying that in his country it might be too late when the danger had become clear and present, that it was important to halt revolutionary or counterrevolutionary movements before they went that far along, for if they reached that stage they would certainly lead to bloodshed and perhaps to overthrow. T h e failure of the Weimar Republic to halt Hitler—to put it in another form, the permission to misuse the privileges of democracy to overthrow

democracy—may

illustrate

the

conferee's

comment. In our own history we have not always observed the forms of law in time of stress. There come to mind two young W h i g lawyers who went to Washington as Congressmen in the same year and became friends. One was Alexander Stephens of Georgia, later Vice-President of the Confederate States. T h e other was a prairie lawyer, Abraham Lincoln. W h e n the fury of the Civil W a r mounted, conscription became inevitable. T h e power to conscript, so Stephens maintained, rested in the several states. Contrary to his views the Confederate Congress passed a conscription act. This violation of his political principle so angered Stephens that he fought for liberty against government while the fate of the Confederacy was settled on the battlefield. Oppos-

THE

36

HATED

ing centralization, conscription, and martial law he wrote in 1862 that it was better that the Union armies sweep f r o m the Potomac to the Gulf than that the people should submissively yield to an edict of one of the generals. 33 Lincoln kept his eye on the larger ends. T h o u g h embarrassed by the excessive measures of some of his generals, he upheld the suspension of the writ of habeas corpus in public letters that were as lawyerlike as they were pithy. W e remember his words: " M u s t I shoot a simple-minded boy w h o deserts, while I must not touch a hair of a wily agitator who induces him to desert? . . . I think that in such a case, to silence the agitator, and save the boy, is not only constitutional, but, withal, a great mercy."

34

There is obvious danger in the view that circumstances alter cases and that our legal principles may have to be put aside for some still larger good, even for their own preservation. T h e r e is strong appeal in the simplicity and directness of the opposing view which sees so clearly the moral rights embodied in the legal principles that no thought of limits can be tolerated. T h e appeal and the answer to it have been put sharply by two Justices of the Supreme Court in dissenting opinions. One urged that the guarantees of the First Amendment are absolutes and that the "balanci n g " of other values against them is intolerable, for "to 'balance' an interest in individual liberty means almost inevitably to destroy that liberty." 3 5 Another gave an answer earlier: But the two great Justices to whom we mostly owe the shaping of the constitutional protection of freedom of speech, Mr. Justice Holmes and Mr. Justice Brandeis, did not erect freedom of speech into a 33

RICHARDSON, L I T T L E A L E C K 2 4 1 - 4 2

" Letter

to Erastus

Corning

(1932).

and Others, June 1 2 , 1863, in 6 COLLECTED

WORKS OF ABRAHAM LINCOLN 2 6 6 - 6 7 ( R o y P . Basler ed. 1 9 5 3 ) .

" M r . Justice Black dissenting in In re Anastaplo, 366 U.S. 82, i l l

(1961).

THE

HATED

37

dogma of absolute validity nor enforce it to doctrinaire limits. Time, place and circumstances determine the constitutional protection of utterance.36 T h e danger that the one Justice would banish f r o m the law and the other would face each time it arose is inherent in every political and social system that is not based on immutable and overriding principles. E v e n systems resting as they assert on principles handed down by supernatural power have to find means of adjustment as conditions change. With the humility that keeps us f r o m laying down a principle controlling for other times and places, w e can insist that in our fortunate country w e will follow in political trials, too, the guide lines laid d o w n for ordinary trials. W e will be vigilantly on guard against those w h o invoke in ordinary times what may be an ultimate necessity in other times. F o r our sake, too, w e will lend our support to those who by international measures

would

strengthen the rule of law and legal protection of human rights. W e may be wise enough to know that when conditions change institutions also must change, so advocates of change may be the true conservatives of our basic values. W e will remember that the struggle between the two essentials, order and freedom, is an everlasting one. W e can gain perspective and steadiness by observing how in the past protagonists of freedom have borne themselves. S o in closing, I borrow from the book with which I began a passage on the trial of Socrates: Was the result a judicial error or a judicial murder? I do not believe that to these questions there ever will be one answer. There will always be those who prize order and the interests of the community 36

Mr. Justice Frankfurter dissenting in In re Sawyer, 360 U.S. 622, 666

(i959)-

THE

3«

HATED

above all else; who make the safety of the State the supreme law; and they will answer as did Hegel, as many others have done since: "It was a good deed, a necessary deed; Socrates must die that the people might live and be strong. . . ." But there will always be others who, prizing individual freedom and the inner life above all things, thinking much of the invisible and imponderable things about us, will regard the result as a crime, the victim as the first and greatest martyr for true freedom and true progress. 37 "MACDONELL,

op. at. supra note I at 15, 16.

s THE

POOR

Criminal prosecutions o£ the hated illustrate graphically the need for zealous lawyers. Important as these cases are, they form but a small part of the situations in which a lawyer is needed. Most of the lawyer's work in court is made up of civil cases, not criminal cases, and the great bulk of his work consists of office work, not of court cases at all. T h e proportion is indicated by statistics on the profession in England. There the solicitors, typically the office lawyers, outnumber the barristers in active practice by ten to one. For the American profession, which combines the solicitor and the barrister in one person, there are no comparable statistics. Yet the predominance of office work was noted a generation ago by Judge Learned H a n d : " [ I ] n my own city the best minds of the profession are scarcely lawyers at all. . . . W i t h courts they have no dealings whatever, and would hardly know what to do in one if they came there."

1

T h e kind of services rendered is a reflection

of the needs of clients. T h e extent of the lawyers' work in civil cases and in out-of-court work is a result of the needs of clients for lawyers. Most of the situations in which clients need lawyers are not reached by the legal right to counsel. A litigant in a civil case has as yet no legal right to have counsel provided for him. T h e 1 Hand, Have the Bench and Bar Anything to Contribute to the Teaching of Law?, in P R O C E E D I N G S , A S S O C I A T I O N O F A M E R I C A N L A W S C H O O L S 4 5 , 5 6 ( 1 9 2 5 ) .

THE POOR

40

person who needs office advice and drafting is in no better position. Each of them has the privilege of retaining counsel to represent and advise, but that is all. If reality is to be given to the ideal, a lawyer when needed, it is essential that the person in need be able to secure one. So "the right to counsel" has come to have a meaning that goes beyond the technical legal right. It has come to mean a moral right of the person who needs counsel, with a correlative moral obligation on society and especially on the profession of law. The obligation calls for measures that will enable every person who needs a lawyer to have one, whether in a criminal case or a civil case, in a litigated or unlitigated matter. The clearest need is that of the poor. Their plight is most appealing, too, since the poverty which makes them unable to enforce their legal rights makes those rights doubly important for them. Despite the leveling up of income and property in this country there are still millions of the poor who need legal services.2 Justice and the Poor, the pioneer book by Mr. Reginald Heber Smith, made plain that the principal difficulty in the way of justice under law for the poor is the expense of counsel.3 Ever since that book appeared, leaders of the profession have gladly given their support to legal services for the poor. Every Chief Justice of the United States beginning with Chief Justice Taft has been Honorary President of the National Legal Aid Association. Mr. Elihu Root wrote the foreword to Mr. Smith's book, believing that "the highest obligation of government is to secure justice for those who, because they are poor and weak and friendless, find it hard to maintain their own rights." ' BROWNELL, LEGAL 'SMITH,

A I D IN T H E U N I T E D

J U S T I C E AND T H E POOR

(1919).

STATES 7 6 - 8 6

(1951).

41

THE POOR

Mr. Charles Evans Hughes was the first Chairman of the American Bar Association's Special Committee on Legal Aid, soon transformed into a standing committee because of the Bar's continuing responsibility in the field.4 It is at the local level, however, that the work of legal aid is done. At this working level hundreds of devoted lawyers have given their best in leadership. My discussion, you will quickly observe, is inadequate as a survey of the developments of legal services for the poor, since it passes over most of the history. T h e discussion is disappointing also for it omits even mention of many men who as leaders of legal aid have made these services possible. Yet I do no more than the poor clients themselves. They ignore the persons to whom they are most indebted for the services they receive, and they even remain unaware of their identity. It would not serve any purpose, certainly not mine, to retell the story of legal aid which could be better told—and has been better told—by others. 5 My purpose is a very limited one. It is merely to list and to sketch the variety of methods employed in providing legal services for the poor, beginning with private methods and moving on to public methods; then to outline the combined private-public method that has developed so well in England and has made an appearance here; and, finally, to indicate some of the factors that are important in determining a choice among the variety of methods. T h e private methods are of two main classes. T h e first consists 4

46 A . B . A . RF.P. 4 9 3

SMITH,

GROWTH

COMMITTEE NATIONAL CI.SI.D

OF

(1959);

SOCIATION

OF THE

LECAL

OF

(1921).

siipa note

op. at.

'SMITH,

LEGAL

AND OF

DISTRICT

BROWNELL, WORK

ASSOCIATION

AID

REPORT

THE

3;

AID

OF

DEFENDER THE OF

IN

THE

op. cit. supra note

THE BAR

UNITED OF

THE

ASSOCIATION,

COMMISSION COLUMBIA

ON

(1958).

STATES CITY

EQUAL LEGAL

2;

OF

NEW

JUSTICE AID

BRADWAY

(1936);

OF

YORK

FOR THE

&

SPECIAL AND

THE

AC-

BAR

AS-

THE

42

POOR

of voluntary services by lawyers to those in need. The services may range from a few words of advice or assurance in the office on to representation in prolonged litigation. At times these services are distinguished and effective, as in both of the cases in which the legal right to counsel under the Constitution was established in the Supreme Court of the United States.9 But it is unfair to place the burden of the care of the needy on any group who earn their living by their work. The unfairness and the uncertain nature of the services make this method undependable and unsatisfactory in criminal and in civil matters. The other class of private methods is that of legal aid organizations. At their origin the organizations emphasized or were limited to civil matters, but in recent years many of them have extended their work to criminal cases through "voluntary defenders," a development marked by a change in breadth of the name of the national organization to National Legal Aid and Defender Association. Through the efforts of local leaders and the continuing support of the American Bar Association, the number of legal aid and defender offices grew almost threefold in the decade of the 1950s, with over 300 offices in operation in i960." There has been great variety in their form. They may be legal aid societies with organic independence, departments of social agencies, bar association offices, or law school clinics. Even as to criminal cases there is diversity in the form of organization with some legal aid societies having criminal law divisions, and some having voluntary defender organizations with separate identities. Whatever the form of organization the operating standards have 'Powell v. Alabama, 287 U.S. 45 ( 1 9 3 2 ) ; Johnson v. Zerbst, 304 U.S. 458

(1938).

7 Brownell, A Decade A.B.A.J. 867 ( 1 9 6 1 ) .

oj

Progress:

Legal

Aid

and

Defender

Services

47

THE

POOR

43

steadily improved through the interchange of ideas and through the stimulus of the national organization. T h e methods of public legal aid are still more varied. T h e y may be put into four groups: i ) assigned counsel, 2) the public defender, 3 ) aid to men in military service, and 4) administrative commissions and officials. T h e system of assigned counsel, compensated or uncompensated, is still the most widely used method in criminal cases. 8 It rests on the professional and public duty of a lawyer to accept the assignment to defend an accused in a criminal case when the judge so assigns him. T h e system has furnished outstanding illustrations of devotion, as mentioned in an earlier lecture. But the quality of representation it affords in most cases has been found inadequate by those most competent to assess it. 9 T h e provisions for compensation of assigned counsel by the state vary widely, most of them being insufficient. T h e public defender is a salaried official who stands ready to represent indigent accused. T h e office has had a long and admirable record in some states. It was created in the District of Columbia, and its authorization in the federal courts generally is under consideration by committees of Congress. A s with other public officials the methods of selection vary f r o m popular election through appointment by the judiciary or other officers on to civil service procedures. Deliberate efforts have been made to remove the public defender f r o m political pressure and from subservience to the prosecutor. A civil counterpart of the public defender in some cities has been the public bureau, that is, a public agency to 8

BROWN E L L , op.

cit.

supra

note

2,

at

123;

EQUAL

JUSTICE

FOR

THE

ACCUSED,

op. cit. supra note 5, at 48. 'BROWNELL,

op. cit. supra

note 2, at

cusi-D. op. cit. supra nore 5. at 6 j ff.

136ft.;

EQUAL JUSTICE FOR THE

AC-

THE

44

POOR

furnish legal aid to the indigent. It has not developed as rapidly as the public defender, perhaps because the legal aid societies were formed earlier and performed the services in civil cases that such a bureau might have taken over. The most extensive system of legal service at public expense has been that of legal assistance for servicemen and their families, notably in World War II. Most of the services were supplied by legal assistance officers of the armed forces, but part of them were supplied by lawyers in private practice whose aid was enlisted by the various bar associations. It is estimated that some ten million cases exclusive of court martial matters were handled in the three years from 1943 through 1945. 10 The obstacle of the expense of counsel may be met, as Mr. Reginald Heber Smith observed, by making the private lawyer's services unnecessary through the active participation of the tribunal or of an administrative official. 11 An example is the Workmen's Compensation Board. The magnitude of its work is indicated in a recent study of the New York State Board by Professor Gellhorn and Mr. Lauer: "The number of reported accidents in employment is immense—an annual average of 716,566 over a five year span, 1955-59." 1 2 O n c e the Board is informed of an injury, it goes ahead with the case on its own motion. Private counsel may be employed but are not essential. The effect of the Board's activc role on the need for counsel is shown by the decline or disappearance of workmen's compensation cases in legal aid offices. 13 The two general methods sketched above for providing legal 10

B L A K E , L E G A L A S S I S T A N C E FOR S E R V I C E M E N 2 9 , 3 2

(1951).

"SMITH, op. cit. supra note 3, chs. XII, XIII. " Gellhorn & Lauer, Administration of the New York. Workmen's sation Law, 37 N.Y.U.L. REV. 204, 564 (1962). " S e e BROWNELL, op. at. supra note 2, at 74-75.

Compen-

THE

POOR

45

services to the poor are antithetical: one through private means with no governmental aid, the other through governmental means without private participation. The third method is joint participation of governmental and private organizations, that is, government support and private operation. It is most highly developed in England. The English Legal Aid and Advice Schemes, implemented by statutes and regulations from 1949 to 1961,14 is based on three sets of principles.15 They concern the clients, the government, and the lawyers. First, as to the clients: "The Schemes provided under the Legal Aid and Advice Acts aim to make available to the public those services of solicitor and counsel which a reasonable man would provide for himself had he sufficient means to do so." 16 Second, the government should pay the costs of the services beyond what the clients can pay, but the government should have no share in the administration of the system. Third, the organized legal profession should have the controlling part in the operation of the legal system, the legal work should be done by lawyers in private practice, and in the individual case the relation between the private lawyer and the client should be direct with no interposition of an official or organization. The primary responsibility for administration of the system is placed on The Law Society, the notably efficient organization of the solicitors, in consultation with the General Council of the Bar. The Law Society has set up panels of lawyers for different 14 The basic statute is Legal Aid and Advice. 1949, 1 2 , 1 3 , 1 4 Geo. 6, c. 5 1 . " T h e writer is especially indebted to E . J. T . Matthews, Esquire, UnderSecretary, T h e L a w Society, w h o has been most helpful in giving information on the operation of the English plans.

"MATTHEWS, THE

PROVISION

AN FOR

OUTLINE LEGAL

OF

AID

THE IN

LEGAL

CRIMINAL

AID

AND

CASES

IN

ADVICE

SCHEMES

ENGLAND

(mimeo.), prepared for the International Legal Aid Association

AND

AND

WAI.ES

Directory.

OF I

THE POOR

46

classes of professional work, and nearly all the members of the profession have exercised the option to go on a panel.17 The person who seeks legal aid in court proceedings must meet two requirements, one directed to the substantiality of his legal interest, the other to financial need. The Law Society has organized local committees which hear applications and determine whether the applicant has reasonable grounds for taking action or defending or being a party to it. In addition, the applicant must be approved by the National Assistance Board as one whose financial condition entitles him to legal aid. A person receiving legal aid may be required, if his financial condition warrants, to make a contribution to the legal aid fund. The major part of the fund comes from appropriations made by the government. Once the application is approved, the applicant goes to a solicitor of his choice on a panel of solicitors. From then on, including the briefing of a barrister on a panel, the case proceeds in the usual way. "The client" is the assisted person, not The Law Society, and the relationship between the client and the lawyer is direct. On the fundamental matters of the privilege of the client to select his lawyer and on the directness of the relationship between the client and the lawyer, the statute is explicit: W h e r e a person is entitled to receive legal aid, the solicitor to act for h i m and, if the case requires counsel, his counsel shall be selected from the appropriate panel and he shall be entitled to m a k e

the

selection himself. 17 "Whether or not to take part in the Schemes is a matter for each lawyer— those who are willing to do so have their names entered on panels which are printed and made available to the public. Practically every firm of solicitors and virtually all barristers in the country have joined panels." Matthews, Lawyer Referral—The English Equivalent, T H E L A W Y E R R E F E R R A L B U L L E T I N A . B . A . C O M M I T T E E ON L A W Y E R R E F E R R A L S E R V I C E N O . I , at 2-3 (1963 issue).

THE

POOR

47

[T]he fact that the services of counsel or a solicitor are given by way of legal aid shall not affect the relationship between or rights of counsel, solicitor, and client or any privileges arising out of such relationship. 18 T h e solicitor and the barrister arc entitled to 90 percent of the usual fees allowed on the taxation of costs in the Supreme Court, which are paid out of the legal aid f u n d . A simpler companion system is provided for "legal advice," that is, advice on legal questions given by a solicitor. A n applicant is entitled to legal advice if he satisfies the solicitor that he cannot afiord to obtain it in the ordinary way. This system, too, is financed primarily by the government. Extensive publicity has been given to the plans. Posters displayed carry the appealing message: " T h e H e l p of a L a w y e r is Within Y o u r Means." A descriptive booklet, "Legal A i d and A d v i c e : H o w to Obtain the H e l p of a L a w y e r , " has been distributed by the hundreds of thousands, and its first paragraph includes the same reassuring message as the posters. T h e results of the system are that: The majority of the population are within the financial limits for Legal Aid and well over half of all cases in the Courts are conducted under the Scheme. Half of all those assisted have a sufficient income to pay a contribution, the average amount being about £50—between a half and a third of the total fee received by the solicitor and barrister. 19 T h e L a w Society has introduced another plan, the Voluntary Legal Advice Scheme, which is similar to the American legal referral system discussed in Chapter 4. It is intended for clients " L e g a l A i d and Advice Act, supra note 1 4 , § 6 ( 4 ) ; § 1 ( 7 ) a. " M a t t h e w s , supra note 1 7 .

4

THE

8

POOR

who arc above the financial limits laid down by the statutory scheme but are nervous about consulting lawyers. It has been thus described: The

Voluntary

S c h e m e , i n d e p e n d e n t of

the Statutory

Scheme

but

c o m p l e m e n t a r y to it, covers the w h o l e r a n g e of E n g l i s h l a w . U n d e r it, a n y o n e , h o w e v e r rich, can g o to the office of a solicitor of his o w n choice a n d , in a half-hour i n t e r v i e w f o r w h i c h he pays a fee of jT I , receive advice on any legal question, together w i t h an estimate of a n y f u r t h e r fee to be paid if the m a t t e r c a n n o t be settled there a n d then.20

Legal aid in the criminal courts is left outside the statutory scheme administered by the L a w Society. The earlier system under which the courts of criminal jurisdiction determine whether aid shall be given is continued. T h e Legal Aid and Advice Act bears on criminal cases, however, for in Section 21 it provides that in the determination of the amount paid out of public funds to counsel or solicitor in these cases regard shall be had "to the principle of allowing fair remuneration according to the work actually and reasonably done." A t its beginning the English system was much discussed in American legal periodicals.21 But that thoroughgoing system, ad* Matthews, supra note 1 7 . 21 In an early address to The L a w Society, the plan was outlined by its Secretary, Sir Thomas Lund, who had a major share in preparing the plan. Lund, The Legal Aid and Advice Scheme, 4 THE RECORD A.B. CITY N. Y . 77 ( 1 9 4 9 ) . The whole range of legal aid was recently described for the American Bar Association by the Lord Chief Justice of England. Lord Parker, The Development of Legal Aid in England since 1949, 48 A.B.A.J. 1029 ( 1 9 6 2 ) . A m o n g the early American articles are: Smith, The English Legal Assistance Plan: Its Significance for American Legal Institutions, 35 A.B.A.J. 453 ( 1 9 4 9 ) ; Thompson, Developments in the British Legal Aid Experiment, 53 COLUM. L . REV. 789 ( 1 9 5 3 ) . For comparative discussions of legal aid in several countries, see Jacoby, Legal Aid to the Poor, 53 HARV. L . REV. 940 ( 1 9 4 0 ) ; Schweinburg,

THE

POOR

49

ministered by the lawyers' organizations and financed by the government, has not been followed in this country. The great growth in legal aid in the decade and more since the English system got under way has been directed principally to strengthening the legal aid societies and to spreading the office of public defender. Yet in a few cities a beginning has been made with a mixed publicprivate system administered by the local legal aid societies and supported in part by local public funds. 22 There is an old mixed system, mentioned earlier, to which we are so accustomed that we scarcely recognize that it is made up of both public and private elements. It is the system of assigned counsel in which state compensation is provided. Private lawyers are assigned case by case, the appointment is made by the judge, a state official, and compensation comes from state funds. This brief survey has given a reminder of the extent of the need of legal services for the poor, a sketch of the methods employed to meet the need, and an outline of the mixed public-private English system for civil cases. I turn now to two general considerations that bear on the choice of method to meet the need. The considerations to be mentioned are our political system and the institutional setting. Our ideals of the role of government were inevitably and profoundly affected by the attitudes prevailing at the beginning of the nation when liberty meant liberty from governmental regulation. Seventeen seventy-six was the date of Adam Smith's Wealth of Nations as well as of the Declaration of Independence. Our Bill of Rights was planned as a protection against government, not Legal Assistance Abroad, 1 7 U . C H I . L . R F . V . 2 7 0 ( 1 9 5 0 ) ; Marsh, Legal Aid and the Rule of Law: A Comparative Outline of the Problem, 2 J . I N T ' L . C O M M . JURISTS a

See

NO.

2,

EQUAL

at

95

JUSTICE

(I960). FOR T H E A C C U S E D ,

op. at. supra note

5,

at

76,

93-94.

THE

5°

POOR

through government. T h e remark attributed to Jefferson, " T h a t government governs best which governs least," is something like a starting point in our political preferences and prejudices. T h e change that time has brought in views on the function of government can be marked by comparing the policy Jefferson espoused with the program of his party today; or more widely by contrasting the American Bill of Rights of the late 1700s, designed as a protection against government, with the Universal Declaration of H u m a n Rights of the United Nations of the middle 1900s, which embodies a conception of affirmative duties of government to advance the welfare of the people. Yet the prevalent American attitude remains that government should not undertake an activity unless private action has proven itself ineffective or insufficient for the public welfare. This attitude is a powerful obstacle in the way of a public system of legal aid, or even a mixed publicprivate system such the English system. In order to meet prejudice against such a system and to bring the discussion down to the merits, it may be useful to point out that government aid to private activities for public ends is a commonplace in this country. T h o u g h we rely on private operation of most of our economy, governmental aid is so usual that it goes almost unrecognized. F r o m this nation's beginning the government has used the tariff in aiding some industries to raise their prices beyond what foreign competition would otherwise permit. Direct subsidies have been granted to other industries to spur work and production. Subsidies are now granted to agriculture to restrain work and production. Indirect aid has been given to the construction industry and also to homeowners by guarantee of loans. Private universities as well as state and municipal universities have received direct grants-in-aid of research as well as

THE

POOR

51

loans for construction. Educational and other institutions, private in their operation but public and charitable in their purpose, are granted tax exemptions by state and local governments, and their benefactors receive exemptions from federal and state taxation of funds given to them. T o point out that the method of government aid to private organizations is widely used is certainly not to say that its application is always wise. Indeed, a particular application may be thought most unwise, as the current controversy over f a r m subsidies and the recurring criticism of tariff rates show. It does suffice to show that the cooperation of public and private methods should be looked at in our field, as in any other, on its merits. 23 Another consideration that bears on the method of providing counsel is our system of administration of law. It is the adversary system which assumes the independence of counsel for each side. T h e importance of independence led the Supreme Court of the United States to give a narrow interpretation of court "officers" so as to exclude lawyers from a statute which empowers the federal courts to punish its "officers" summarily for contempt. 24 " T h e r e are strong reasons," the Court said, " w h y attorneys should not be considered 'officers' under Sec. 401 ( 2 ) , " and it quoted a passage from an impeachment report of over a century earlier: " T h e public have almost as deep an interest in the independence of the bar as of the bench." " " [ T l h e charge of 'socialization,' whether leveled against the voluntary- or the public-defender system, is not only unwarranted but also obscures the essential problem. It is a charge ladened with emotion. . . . T h e charge has no meaning unless socialism is understood to encompass every device through which, by joint community activity or by an organ of the state, the community discharges a community responsibility. In this sense, all government is an aspect of s o c i a l i z a t i o n . " EQUAL JUSTICE FOR THE ACCUSED, op.

" Cammer v. United States, 350 U.S. 399 ( 1 9 5 6 ) .

cit.

supra

n o t e 5 , at

45.

THE

52

POOR

Many of the controversies of the poor as well as of the rich are with the government, as in criminal prosecutions. So it is argued that it would be unwise to have the counsel for the accused designated and paid by the state which is the prosecutor. T h e Master of the Rolls forcefully stated the argument in an address which supports the English system in civil cases: I a m also sure that the legal aid system should be r u n by the legal profession

itself—even

though

the State m a y

stantial grants f o r that p u r p o s e . . . .

h a v e to m a k e

sub-

In this connection it is i m p r e s -

sive to r e m e m b e r that w h e n the R u s h c l i f f e C o m m i t t e e w a s consideri n g the L e g a l A i d

S c h e m e as it w a s later b r o u g h t into existence,

o u r L a b o u r P a r t y in E n g l a n d ( w h i c h m i g h t be said to be inclined to f a v o u r State c o n t r o l ) w a s firmly of o p i n i o n that the S c h e m e s h o u l d be operated, not by the State, but by the legal p r o f e s s i o n . 2 5

In this country some critics, notably Judge E . J. Dimock, have directed the same argument against the public defender. In an article and in testimony before a committee of the House of Representatives, he expressed his views in strong language: " W e should never yield one inch of ground in the struggle against the creation of a police state where the government, when it prosecutes a man, purports also to defend h i m . " 2 8 Judge Dimock favored the grant of public funds for the payment of counsel assigned by the judge on a case by case basis, but not for a private legal aid organization, despite the exceptional

representation

afforded by T h e Legal A i d Society in his own city. T o support his view that a public defender would not give the same whole-hearted services as a lawyer in private practice, Judge x Lord Evershcd, The Profession of the Latv, 2 J. IND. L. IN'ST. 223, 232 (1960). ""Dimock, The Public Defender: A Step Towards a Police State?, 42 A.B.A.J. 219, 220 (1956).

THE POOR

53

Dimock quoted passages from the statement of an Assistant Attorney General of the United States in support of a federal public defender: " I f the accused has no real defense, the public defender will honestly advise him to plead guilty, thus avoiding the expense and time of an unnecessary trial." 2 7 Representative Celler, the leading congressional supporter of the federal public defender plan, gave some support for the same criticism when he wrote: " T h e Public Defender would not ask for repeated continuances in the hope that key witnesses will somehow disappear or that in the next term of court the defendant might draw a more lenient judge or jury." 2 8 It must be admitted that the interminable delaying tactics that private counsel at times employ would rarely, if ever, be employed by the public defender, and that the long-run good of an accused, rather than acquittal and immediate return to crime, might be a factor in his actions. But the public defender is not the only one who is subject to pressures from the appointing power or from officials, and who might yield to them. Under a system of compensation of private counsel designated case by case by the judge, weak counsel may be tempted not to stand up to an arrogant judge, so that he may be favored by another appointment on another day. And a grand jury has charged that appointed counsel failed to bring to the attention of the court or the prosecutor that their clients had been deprived of their civil rights by officers of the law. 29 T h e strength of the defender, public or private, turns on the spirit and strength of the bar of which he is a part. 27 Hearings on Bills for Representation for Indigent Defendants in the Federal Courts Before Subcommittee No. 2 of the House Committee on the Judiciary, 86th Cong., ist Sess., ser. 1 3 , at 41 ( 1 9 5 9 ) . 28 Celler, New Hopes for Federal Public Defender Legislation, 19 L E G A L A I D

BRIF.F 2°

CASE 2 6 ,

30

'959 Hearings,

(1961).

op. cit. supra note 27, at 201.

THE

54

POOR

Given the situation as it is, informed support for the public defender system is overwhelming. In the hearings before the House of Representatives committee already mentioned, it appeared that every Attorney General of the United States for the past twenty-five years had recommended it for the federal courts, and the Judicial Conference of the United States since 1937 has approved in principle the appointment of a public defender where the amount of criminal work justifies it.30 Chief Justice Warren based his support of the plan on his experience with the public defender when he was district attorney. 31 A balanced judgment was reached by the Special Committee already referred to in its report "Equal Justice for the Accused." Mindful of the objection that the loyalty and devotion of counsel might be affected, and recognizing the need for protection of the office against control by a corrupt political organization, the Committee concluded: "In most of the jurisdictions examined by this committee, the public-defender system has the reputation of giving representation of a quality equal to that of the more qualified private attorneys who practice in the criminal courts." 3 2 The private legal aid organization is wholly free from suspicion of subservience to judge or prosecutor or political officials. Rather wry evidence of the quality of the service in this city is given by the federal judge already quoted: I assign counsel

every criminal to the L e g a l

case w h e r e

Aid

t h e d e f e n d a n t is u n a b l e t o

Society, and

the representation that

pay those

30 /959 Hearings, op. cit. supra note 2 7 , at 23 ff., 1 7 5 . A n able panel headed by Mr. William T . Gossett, President of the National Legal Aid and Defender Association, joined in the support in A Special Report, 21 LECAL AID BRIEF CASE 40 ( 1 9 6 2 ) . 31 ' 9 5 9 Hearings, op. cit. supra note 27, at 1 7 6 . M

E Q U A L J U S T I C E FOR T H E A C C U S E D , op.

cit.

supra

n o t e 5 , at

73.

THE

POOR

55

defendants get from lawyers employed by the Legal Aid Society is so excellent that, when accused lie about their ability to pay, their purpose in doing is not so often to save money as it is to get the services of counsel more able than they could otherwise get. 33 It is difficult to believe that such an organization, directed by leaders of the profession and community, would permit the independence or the quality of its services to be affected by the source of its funds, whether public or private. Such an organization would certainly provide no less insulation against judge, prosecutor, or political control than any politically appointed official or than counsel chosen and assigned by the judge. If the organization finds it impossible to carry on its work without public funds, this mixed public-private system may be the best form. Publicly supported legal aid has the fortunate characteristic that the client obtains the services as his right under the law. T h e aid is not given under what he may feel are the humiliating terms of charity. Yet private operation through a legal aid society in this country has a manifest advantage. T h e advantage comes f r o m continuing participation in the legal difficulties of the poor, observation of the sources of the problems, and willingness to attack the problems wholesale at the sources instead of merely aiding individuals one by one when they are in difficulty. This determination to attack wholesale can scarcely be expected from private lawyers retained case by case or even from public officials. T h e determination is found in the legal aid societies. T h e histories of T h e Legal A i d Society of N e w Y o r k City by Professor John M . Maguire and M r . Harrison T w e e d illustrate abundantly these preventive measures. 34 T h e measures have inM

/959 Hearings,

"MAGUIRE, NEW

YORK

THE

CITY,

op. at. supra note 27, at 39. LANCE

OF J U S T I C E

1876-1951

(1954).

(1928);

TWEED,

THE

LEGAL

AID

SOCIETY,

56

THE

POOR

eluded planned and continuing legal actions against oppressors, as in the old days against impressment o£ seamen, bucket shops, and installment frauds. They have extended to the proposal and support of new legislation that attacks the causes of the need for legal aid, and the support of affirmative efforts by others, as to the Russel Sage Foundation in its broadly conceived attack on the small-loan system. Many years ago the Society's purpose clause was extended to include an avowal of this preventive function, that is, "and to promote measures for their [the poor's] protection." One of its annual reports stated its purpose: "for the future to give much time and effort to a well considered legislative program." Turning from these aspects of our political system as they bear on the form of legal aid to the poor I will mention the institutional setting of the legal profession and of legal aid in England and the United States. England has stronger organizations of lawyers than w e have. The four inns of court have a control over all barristers that rests on immemorial custom. The Law Society has broad control over solicitors which is based on a statute and which is deserved by the excellence of the Society's leadership and administration. Observing the need for legal services for the poor, and confident in its strength, The L a w Society devised and urged the scheme of legal aid and assistance. It is worthy of note that the plan for legal services was put forward by lawyers and is administered by them, while the English plan for medical services was not devised by the medical profession and is administered by the state. Another characteristic of the English legal profession is a system of supervision of fees, either by legal provisions or by official taxing masters. This system makes it relatively easy to determine the

THE

POOR

57

fair or going fee for a lawyer's work and to block excessive charges. In this country the professional organizations are ordinarily not all-inclusive, as with the inns of court, nor are they as active as T h e L a w Society even in states with the all-inclusive bar organizations. T h e system of fees is chaotic, with little indication of what is a fair fee. In summary, the system of legal aid in E n g l a n d prior to the 1947 statute was very limited. T h r o u g h vigorous leadership and efficient administration E n g l a n d has developed a system that is suited to her conditions and that has the cordial support of the legal profession. In our decentralized federal nation, we continue to experiment with and to employ a variety of methods of m a k i n g legal services available to those w h o need them. T h e principal method, the voluntary legal aid society, originated early and has taken on a life and form of its own. F r o m the English example we can gain support for the necessary independence of the lawyers provided and observe how this independence may be preserved even when public funds are the source of the services. But the institutional setting and in lesser measure the political ideals are obstacles in the way of our adoption of the English system. Whatever the preference any of us may have for a particular method, there are two general conclusions on which we can agree. T h e first is the importance of creative dissatisfaction. Mr. E m e r y Brownell, who gave his life to legal aid, thus expressed it in his last report: "One of the best aspects of the American way of doing things is that w e are never satisfied with progress. Our ideals are always at least a jump a h e a d . " 3 5 T h e second is the need for 13 Brownell, A Decade of A . B . A . J . 867, 870 ( 1 9 6 1 ) .

Progress;

Legal

Aid

and

Defender

Services,

47

THE

58

POOR

variety as well as continuity of method. On this Mr. Justice Potter Stewart has said: "The quest for equal justice under law for those who cannot pay for the legal help they need will continue to demand unceasing and many-sided effort." 3 8 "Id.

at

871.

4THE MIDDLE

CLASSES

T h e United States has long been twitted as a nation of the middle classes with widespread material comforts but with tastes and standards pulled down to a low common level. As an Italian historian put it: European culture was a culture for the few, American culture a culture for the many. You remember the saying about the opportunities in the arts of war that the French Revolution opened for the men in Napoleon's armies: every soldier carried a marshal's baton in his knapsack. T h e saying was borne out by the humble beginnings and the extraordinary achievements and positions of many of Napoleon's soldiers. A similar statement can be made about Americans as to opportunities for leadership in the arts of peace as well as of war. T h e truth of the statement carries with it immensely broadened national resources of talent in every field of endeavor. If history gives us a good mark so far, it will not be because of our wealth or our power but because of the enriched opportunities for personal development and expression opened for most of our people. It is not my desire to deny our impeachment as a middle class nation or to argue over the qualities this character implies. It is my purpose to consider some implications of this national character for our subject, a lawyer when needed. In this century our middle groups have grown steadily larger, not so much at the expense of the level above as of that below.

6o

THE

MIDDLE

CLASSES

The leveling upward of income and of opportunities has been notable. It would be easy to give statistics showing the growth. It is easier and enough to look at the schools, universities, and museums crowded with students, at the roads jammed with automobiles, and at the advertisements urging all to buy the conveniences of today and pay next year. The leveling up process has had a shrinking effect on the topic discussed in Chapter 3, legal services for the poor. As the proportion of the indigent declines, the proportion of the legal services they need declines. The most recent history of The Legal Aid Society of New York reveals that despite the large increase in the population between 1911 and 1951, the number of civil cases handled by the Society remained steady. Mr. Harrison Tweed, the Society's Historian and notable President, reviewing the causes of the situation, gave as the principal cause "the great change in income distribution in this country in the last forty years." 1 There is the converse effect. As the proportion of the poor has gone down, the proportion of the middle classes has gone up, so that an increasing proportion of our people are able to pay for the legal services they need. Further, the increase in wealth brings an increase in the legal problems of acquiring and disposing of property, and the need for legal services goes up faster than the proportion of the middle classes. Yet these growing classes with an increasing need for legal services do not obtain in proportionate measure the legal services they need, at least from lawyers. The wide gap between the need and satisfaction by the bar has been indicated by numerous studies beginning in the 1930s.2 Lawyers have been kept aware of this by 'TWEED,

THE

LEGAL

AID SOCIETY, N E W

YORK C I T Y ,

1876-1951,

97

(1954).

~ Among the pioneer studies were Garrison, A Survey of the Wisconsin Bar, 10 Wis. L. REV. I 31 (1935)» Clark & Corstvet, The Lowyer and the Public, 47 YALE L.J. 1272 ( 1 9 3 8 ) . See also Koos, THE FAMILY AND THE LAW (2d cd. 1052)»

THE

MIDDLE

CLASSES

61

the extent of unauthorized practice of law by laymen and by the ingenuity and insistence of laymen in developing new group methods of obtaining legal services. T h e situation was well described in a Bar Association handbook: " I n our lifetime the lines of class and wealth have largely disappeared and Jack enjoys nearly all the things that were formerly the heritage of his master. Mass production, however, is for material things, and our profession, along with the medical, has had great difficulty in attuning itself to the modern world."

3

Before the gap between need

and satisfaction is considered, some preliminary matters need discussion. W h o are the middle classes? A social historian concentrating on Europe would assign to them the whole range between the peasants at the one end and the aristocracy at the other, that is, the broad mercantile, industrial, and intellectual groups whose rise destroyed feudalism. This historical contrast between social classes has little or no application to this country. Certainly, it is of no use in our discussion since it includes within the middle classes the lawyers and their good clients as well. N o r would a classification based on figures of income or wealth be satisfactory, since there is an unbroken continuum f r o m the poorest to the wealthiest. A classification is needed that is relevant to our subject. This definition or test is suggested: the persons who are able to pay for needed legal services, yet do not obtain them from lawyers because of their ignorance or fear or the inaccessibility of lawyers. T h e test would cover most of the blue-collar and whitecollar workers and others as well. T h e i r number is difficult to estimate. Certainly it is very large, far larger than the clientele of the legal aid societies. In 1947, Judge Albert Conway of the Court * STANDING C O M M I T T E E ON L A W Y E R R E F E R R A L S E R V I C E , A M E R I C A N B A R ASSOCIATION. HANDBOOK ON T H E L A W Y E R R E F E R R A L S E R V I C E ( 4 t h e d .

1958).

THE MIDDLE

62

CLASSES

of Appeals of New York urged "a fresh and adequate approach . . . to the subject of legal aid for the hundred or more millions of Americans who have no access to any form of organized legal aid." 4 Within our profession there has long been a contrast in attitude toward the poor and toward the certainly no less deserving middle classes. The poor have had the aid of the courts and of leaders of the profession in securing the legal aid they need. Until recently no comparable thought and effort were given by the profession to the middle classes. The middle classes lack the sentimental appeal of the poor, and they will not be the clients of the financial leaders of the profession. Neither sentiment nor interest has led the profession to give to this largest part of our people the attention they merit. In reaching the middle classes law is under a handicap when compared with medicine. Physical ills with the consequent need for medical care usually give their signs early through pain or weakness, but the need for legal care may not show itself until a lawsuit. T h e profession of medicine has allies that keep stressing the importance of medical care. W e cannot glance at a magazine or go into a drug store without having pharmaceutical companies tell us of wonder drugs that physicians can prescribe. Newspapers, radio, and television do their part, for there is news interest in the developments of the biological and physical sciences and their uses in medicine and in novel surgical techniques. Pain, weakness, and publicity lead patients to seek out physicians. So politicians, those excellent barometers of public pressures, urge legislative measures to make it easy for all to have medical care. L a w has no such aids and allies to tell of its services. News' 7 0 REP. N.Y.S.B.A. 314 (1947).

THE MIDDLE

CLASSES

63

papers and television may portray sensational court cases in which the clever advocate downs his adversary. They ignore the inconspicuous office work that makes up nine-tenths of lawyers' services. N o one would gather from these sources, and few laymen realize that "the lawyer and the law office are indispensable parts of the administration of justice," 8 or that "Justice in this country is administered 1 0 % by judges in court rooms and 90% by lawyers in law offices." 6 The contrast between the two professions is not a complaint. It is a statement of a fact to be kept in mind in determining how the gap between the need for legal services and its satisfaction may be bridged. Let us consider the causes of this gap, whether on the side of the laymen or of the lawyers; what measures have been taken by lawyers or by laymen to bridge it; and what more needs to be done by lawyers to bring legal services to this very large part of our people. Consider the gap between need and services first from the viewpoint of the laymen. Why is it that laymen do not come to lawyers for the services they need ? One reason is ignorance—ignorance of the need for and value of legal services, and ignorance of where to find a lawyer and whom to choose. A second reason is fear— fear of overcharging and overreaching by the lawyer, and fear of the law's processes and delays. These reasons are of long standing, as the unpopularity of lawyers reveals. Ignorance may be corrected by information. Fear must be replaced by confidence. It is no accident that the largest area of unauthorized practice of law is the middle classes. Laymen go to unauthorized practitioners who are accessible, whose charges they do not fear, and whose "Jackson, J., in Hickman v. Taylor, 329 U.S. 495, 5 1 4 ( 1 9 4 7 ) . " S m i t h , Inaugural

(1946).

Statements,

1 QUART. R E P . C O S F . ON PERS. FIN. LAW I , 6

THE MIDDLE

64

CLASSES

dependability they rely on because of connections with familiar institutions they trust. On the side of the lawyers one reason for the gap is the standards of the profession. T h e standards condemn advertising by lawyers, the representation of conflicting interests, and lay intermediaries who impair the direct loyalty of lawyer to client. These standards all have a substantial basis which does not need to be demonstrated here. Yet they have been reconciled with or subordinated to other elements and to demands for legal services in situations to be mentioned later. Another powerful reason is inertia of the bar coupled with fear of change. Successful lawyers are successful and effective under the system they know. It requires an uncommon effort to contemplate, much less support, a changed professional system, and old convictions give way very slowly before new evidence. A widely prevailing attitude toward new forms of legal services was well expressed in a report of a bar association committee on legal clinics: In considering this phase of the problem it is only fair to state that some members of the committee, as individuals, already entertain a view, founded upon sincere thought and full consideration, that movements of this type are in defiancc of old traditions and concepts still held high in some quarters. That, accordingly, no amount of data could justify the creation of bureaus inasmuch as they are socially undesirable. [Emphasis added.] 7 In short, the minds of these men were made up and closed and no evidence could open and change them. One change to encourage the procurement of legal services has been approved. It is general publicity to inform the public of the 7

65 A.B.A. REP. 451, 453 (1940).

THE MIDDLE

CLASSES

65

nature and need for these services. T h e American Bar Association has a public relations committee, as do some of its sections. An excellent handbook for bar association officers explains appropriate methods of public relations in interpreting the bar to society so as to remove "such obstacles as imperfect contact and misunderstanding may impose." 8 T h e committees on professional ethics have approved within limits advertisements by bar associations for these purposes. One opinion frankly laid down the wise test of whether the advantages to the public that result from advertisements justify departure from the usual standards of the bar: " A bar advertisement should not be condemned merely because it is calculated to bring business to lawyers, but should be judged as to whether the benefits to the public in learning of the advantages of employing lawyers is sufficient to justify it." 9 W e do not yet have anything to equal the English best seller sponsored for laymen by T h e L a w Society, " T h e Services of a Solicitor."

10

By statement,

example, and dialogue this excellent paperback makes plain the variety and need of legal services for ordinary persons, where and how solicitors can be found, and something of their charges. Nor can we match England in the widespread publicity given by T h e L a w Society to the reassuring message: " T h e help of a lawyer is within your means." General publicity, however good, is not enough. T h e layman needs to know where he can find a particular lawyer on whose services and charges he can rely. T h e American Bar Association's consideration of more pointed methods of providing services for the middle classes deserves review, beginning as it does with the 8 WINTERS, Public Relations in B A R ASSOCIATION O R G A N I Z A T I O N ch. XII ( 1 9 5 4 ) . ' S e c D R I N K E R , L E G A L E T H I C S 55 N.42 ( 1 9 5 3 ) . 10 COCKSHUTT. T H E S E R V I C E S O F A S O L I C I T O R (i960).

AND

ACTIVITIES

THE MIDDLE

66

CLASSES

realization of a broad need and leading thus far to a single method. In 1937, a Special Committee on Legal Clinics was created under the Chairmanship of Professor Karl Llewellyn. Reporting for the Committee in 1938, the Chairman outlined the Committee's field of inquiry: "It was to look into the question of how far there might be an existing need for organizing some new device to get proper legal service provided in cases which could pay part, but not all of their way." After referring to the situation in medicine he stated that the task was "if such a need seems to exist, to propose and further devices for filling it." 1 1 The same year, 1938, saw two notable factual reports. One was the monograph by Dean (now Judge) Clark and Miss Corstvet which, following a study in Connecticut, indicated that "there is a large amount of legal business untapped by the legal profession." 1 2 The second was the report of the Special Committee on the Economic Conditions of the Bar under the Chairmanship of Mr. Lloyd Garrison. 13 T h e two studies taken together showed a large amount of undone legal services and an equally large amount of unused lawyers' time. The second report outlined converging facts which continue to the present time: w i t h lay agencies, despite the efforts m a d e to c h e c k t h e m , encroachi n g here a n d there u p o n the practice in w a y s w h i c h sometimes suggest that the b a r itself is deficient in the k i n d s of service w h i c h it renders in certain specialized fields; w i t h g r o w i n g e v i d e n c e that people in the l o w i n c o m e g r o u p s f r e q u e n t l y g o w i t h o u t legal assistance because they c a n n o t a f f o r d to pay f o r it, or because they think they u

63 A.B.A. REP. 443 (1938). Clark it Corstvet, The Lawyer and the Public, supra note 2. " 6 3 A.B.A. REP. 390 (1938). 13

THE MIDDLE

CLASSES

67

cannot afford to pay for it, or because they distrust lawyers or do not know any lawyers or do not know when they need advice. . . . With these and other facts before them the Committee concluded: [I]n these circumstances we think it imperative that the bar should take action both to get at the facts more fully and to experiment with remedies. . . . The time has come to be bold in striking out along new paths of group effort which, if properly safeguarded, will not impair either the traditional independence of the lawyer or the dignity of the profession. In its reports for 1940 and 1941, the Special Committee on L e g a l Clinics indicated its preference for the lawyer reference plan. 1 4 In 1942, the Committee, now under the name of the Special Committee on Low-Cost L e g a l Service Bureaus, made a full-length report in which it considered several plans for extending legal services. It approved wholeheartedly the lawyer reference plan, but added that "its greatest success would be attained only in conjunction w i t h " the neighborhood law office plan and law school legal aid clinics. 15 A f t e r the W a r the Board of Governors of the Association, observing that several committees were considering forms of professional services, appointed a Special Committee on L e g a l Service Policies. T h e recommendations of the Committee, 1 8 approved by the Association, called for state and local bar associations to set up "lawyers' referral plans and low-cost legal service methods for the purpose of dealing with cases of persons w h o otherwise might not have the benefit of legal advice." (Emphasis added.) It will be observed that this report, like the 1942 report, " 6 5 A.B.A. REP. 451 ( 1 9 4 0 ) ; 66 A.B.A. REP. 321 " 6 7 A.B.A. REP. 290, 291 (1942). W 7 I A.B.A. Rep. 1 0 8 - 1 0 , 240 (1946).

(1941).

THE

68

MIDDLE

CLASSES

recommended both lawyer referral plans and other low-cost legal service methods. Despite the recommendations, the Board of Governors in 1950, without reasons given, changed the name of the Special Committee on Low Cost Legal Services to "Lawyers' Reference Service." 1 7 By this mere change of name the Board of Governors quietly halted the consideration of broader methods of providing legal services which earlier committees had recommended in general terms, and the Association concentrated on the lawyer referral plan. 18 The plan, as the excellent Handboo\ on the Lawyer Referral Service states, "is nothing more than a bar association mechanism for the introduction of laymen who need legal advice to members of the bar." 1 0 In each city the service is under the sponsorship of a bar association, and it is supervised by a committee of lawyers. Though publicity by the individual lawyer is frowned on by the bar, experience has shown that it is essential to the success of the lawyer referral system. Publicity for the plan has had court support and the approval of committees on professional ethics.20 17

75 A.B.A. REP. 443 (1950). The House of Delegates approved without discussion the report of the Board of Governors which made the change of name. 75 A. B. A. REP. 407, 443 ( 1 9 5 0 ) . 18

" STANDING

COMMITTEE

ON

LAWYER

REFERRAL

SERVICE,

AMERICAN

SOCIATION H A N D B O O K ON T H E L A W Y E R R E F E R R A L S E R V I C E ( 4 t h e d . 1 9 5 8 ) .

BAR

AS-

Support

for the method of providing legal services through the usual channels is given by what The Law Society has done under its Voluntary Legal Advice Scheme described in Chapter 3 at note 20. Mr. E. J. T. Mathews, Under-Secretary of the the Law Society has written: "We had originally planned to set up legal clinics but, having studied the Lawyer Referral Service, it was accepted by the profession and by Parliament that it is infinitely better to provide that advice be given by practicing lawyers in their own offices." Mathews, Lawyer Referral— The

English

Equivalent,

T H E LAWYER REFERRAL

M I T T E E ON L A W Y E R R E F E R R A L S E R V I C E ) N O I , a t 3

BUELLETIN (1963

(A.

B.

A.

COM-

issue).

20 Jacksonville Bar Association v. Wilson, 102 So.2d 292 ( 1 9 5 8 ) ; Committee on Professional Ethics, American Bar Association, Opinion 227; DRINKER, op. cit. supra note 9, at 257-59.

THE MIDDLE

CLASSES

69

L a w y e r referral service has grown greatly, with a tenfold increase in the number of offices in ten years. F r o m leaders of the bar it now draws devoted service matching that given to its elder, legal aid. A n outstanding advantage of the service is that under it there is a direct relation between the lawyer and the client without taint or threat of conflicting interest. It helps to maintain the free, independent professional man in what has been called "the tone-setting professions of law and medicine." 2 1 T h e service has been highly useful and effective in helping the more resourceful of the middle classes, say, the middle middle class, to obtain the services they need under the best conditions for lawyer and for client. It has probably been even more effective than the statistics of the referral offices can reveal. A client w h o through the service finds a lawyer for one matter is apt to return directly to the lawyer for other matters and to make him known to friends and acquaintances as well. If only the laymen in need did avail themselves of the excellent service, w e could rest content. But the service, useful as it is, does not reach the less resourceful of the middle classes, say the lower middle. T h e facts reveal that the service by itself will not suffice, as the two Committees of the American Bar Association indicated in their reports in the 1930s. While the bar associations have been reluctant to go beyond lawyer referral services, others have not been hesitant. L a y m e n have pressed in where lawyers feared to venture. T h e same year, 1950, that the American Bar Association quietly channeled the work of its Committee on L o w Cost Legal Services into the one method of lawyer referral, the Association's Committee on Unauthorized Practice of L a w made three strong reports. 22 T h e reports showed the wide scope of unauthorized practice, especially 21 22

Mills, Book. Review, 68 HARV. L. REV. 198 (1954). 75 A.B.A. REP. 242, 253, 379 ( 1 9 5 0 ) .

THE MIDDLE

7°

CLASSES

in the form of group practice with lay intermediaries retaining lawyers and furnishing their services to clients. The outcry by lawyers has continued and so has the unauthorized practice of law.23 What else could be expected if lawyers do not make readily accessible the legal services needed! The political maxim applies here that: "You cannot beat somebody with nobody; you cannot beat something with nothing." The bar must act affirmatively to see that the need is met by lawyers, not merely negatively to fend off rivals who furnish the services desired. Our concern is not with legal services rendered by laymen, but with legal services rendered by lawyers and with new methods needed to make legal services by lawyers accessible to laymen, especially to the middle classes. Two general methods will be mentioned. One is the grouping of lawyers to furnish legal services; the other is the grouping of clients to obtain legal services. The characteristics essential to the success of any such method are three: first, the services are accessible and dependable; second, the services are rendered by lawyers; third, there is adherence to the professional standards that support the loyalty and competence of the lawyers. The professional standards will be considered first, since they have often been urged in opposition to new methods of providing legal services. The standards of lawyers, it is to be remembered, are not ends in themselves, nor are they negative in their object. They are affirmative in their purpose and are means to the end of better performance of the lawyers' roles. They are no more immutable than any other laws or standards. If under changed con" T h e agreements of the American Bar Association with several groups on lines of demarcation and methods of cooperation are published in III MARTINDALEHUBBELL

LAW

DIRECTORY

141A

IT.

(1962).

THE MIDDLE

CLASSES

71

dirions they come to block the purpose they are intended to serve, they should be modified or rejected. A t times they have been modified or set aside, as some examples show. T h e condemnation of representation of conflicting interests is surely a most important standard. Y e t it has been subordinated to other interests in liability insurance, where the lawyer employed and paid by the insurance company is counsel for the insured. T h e bar's approval of liability insurance illustrates as well the subordination to larger ends of the standards against the lay intermediary, against advertising, and against a corporation practicing law. T h e prohibition of advertising also has been modified in favor of legal aid, lawyer referral service, and neighborhood law offices, since the modification is essential to the success of these systems in bringing legal services to those who need them. T h e prohibition against a corporation practicing law has been set aside in several states by statute or by rule of court and upheld with appropriate limitations as a means of obtaining for law firms economic advantages that are available to other groups. 24 A l l of the instances mentioned are obvious examples of changes in the standards to serve wider purposes, like liability insurance protection, accessibility of legal services, or the economic interests of the bar. If further modifications are essential to larger ends, they should be made. Imaginative and public-spirited lawyers may devise new group methods of making legal services available. T w o of these methods have already been discussed—legal aid for the poor and lawyer referral for the paying clients. Still other and more far-ranging methods have been proposed or tried. In the 1940s Mr. Reginald M I n the Matter of The Florida Bar, 1 3 3 So.2d 554 ( 1 9 6 1 ) . See Bye and Young, IMW Firm Incorporation in Colorado, 34 ROCKY MT. L. REV. 427 (1962).

THE

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Heber Smith proposed a series of "adequate facilities which will assure competent legal advice and assistance to the millions of persons of moderate means." 2 o T h e series of facilities suggested, beginning with the lawyers' referral plan, would include legal service offices and neighborhood law offices maintained under bar auspices and law school facilities. T h e proposed facilities would have called for the active participation of the bar associations and the law schools. T h e participation needed has not been generally forthcoming. A notable exception, in Philadelphia, was described in its early days for the Survey of the L e g a l Profession. 2 6 In 1938, the Philadelphia Chapter of the National Lawyers Guild developed a plan under which law offices would be opened at convenient places in poor and busy neighborhoods. A s with the lawyer referral service publicity was essential to the plan and some general publicity was secured. Specific publicity, too, was obtained through office signs that were often very large when measured by the usual standards and at times even marked by neon lights. T h e offices, self-supporting and independent of one another, were permitted to state on windows and stationery that they were neighborhood law offices authorized under the National L a w y e r s Guild plan, which called for limitations on fees and for supervision by the Guild. T h e originator of the plan, Mr. Robert D . Abrahams, now Chairman of the Committee on Public Service of the Philadelphia Bar Association, has kindly given the writer a brief description of its present operations : The Neighborhood Law Office Plan is highly successful and now consists of 28 offices in the Philadelphia area. Some years ago, the " S m i t h , Legal Service Offices for Persons of Moderate Means, 31 J. AM. JUD. SOC'Y. 3 7

(1947).

"Abrahams, The Neighborhood

Law Office Plan, 1949 Wis. L. REV. 634.

THE

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73

Philadelphia Bar Association assumed supervision of the Plan. . . . Last year, more than 4,000 clients were served by the Plan and this in a city in which we also have Lawyer Reference, Legal Aid and Voluntary Defender. 27 T h e modern Philadelphia lawyer has initiated and proven new ways by which lawyers can make their services accessible and dependable for all levels of the people from the wealthy clients through the middle classes on to the poor, in civil as well as in criminal cases. 28 A wholly different manner of making legal services accessible is the grouping of laymen to obtain legal services, called group legal services. In group legal services the services are performed by lawyers, but the lawyers are procured for the client by an organization of which the client is a part. Beyond these common characteristics the methods vary widely. One method is through fringe benefits provided by employers to their employees or by labor unions to their members. Another is through organizations which retain lawyers w h o render services to the members in their individual matters. A third method is an organization which selects but does not pay lawyers and which recommends the selected lawyers to its members, with the lawyers agreeing to represent the members for reduced fees. T h e most extensive experience with group legal services and the most thorough consideration have been in California. T w o committees of the California State Bar recently studied the matter, found the services were widespread, and recommended measures to halt them. 29 T h e Board of Governors of the State Bar, however, ~ I-etter of September 26, 1 9 6 2 , from Mr. Robert D . Abrahams to the writer. For a description of the range and variety of the services available, see Abrahams, A Philadelphia "First," 25 THE SHINGLE 51 ( 1 9 6 2 ) . 20 34 CALIF. S.B.J. 3 1 8 ( 1 9 5 9 ) ; 35 CALIF. S.B.J. 7 1 0 ( i 9 6 0 ) . See also Enerscn, Croup Legal Services, 35 CAI.JF. S.B.J. 1 1 ( i 9 6 0 ) . LH>

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refused to adopt the recommendations and appointed still a third committee to "continue the study of group and prepaid legal services, insured or otherwise, and to receive and consider suggestions." 3 0 T h e one affirmative thing the Board of Governors did was to urge expanding and strengthening legal aid and lawyer referral programs. This leaves group practice in an unfortunate state. Though the plans are found by the Bar committees to violate the standards of the profession, they are left alone without supervision or control. T h e plans do appear to violate three of the standards of the profession—the one against solicitation of practice, the one against lay intermediaries who interpose themselves between lawyer and client, and perhaps the standard against the representation of conflicting interests. Leaders of the profession have recognized the need for a reconsideration of the Bar's condemnation of the plans. Mr. Robert McCracken, who made a study of professional standards for the Survey of the Legal Profession, concluded: There seems to be a growing recognition of the desire of associations, whether for profit or otherwise, to retain the services of an attorney and have him available for representation of individual members of the group. It is a practice often followed, and accordingly, in the minds of a number of correspondents, should be frankly recognized and no longer held unethical. 31 Mr. Henry Drinker in his study of professional ethics examined the considerations that bear on the employment of a lawyer by an organization to act for its employees or members, and on the em30

36 CALIF. S.B.J. 163, 914, 9 1 5 ( 1 9 6 1 ) . McCracken, Report on Observance by the Bar of Stated Professional 37 VA. L. REV. 399, 418 ( 1 9 5 1 ) . 81

Standards,

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75

ployment of a lawyer by a group having a common interest and charging annual dues to cover the lawyer's compensation. H i s thoughtful conclusion, too, deserves quotation at some length: Much could be said in favor of the propriety as well as the practical wisdom of permitting a corporation to furnish, as part of its contract of employment, legal services to its employees where this is for the benefit of the corporation, where the reladon between the lawyer and the employee is direct and no conflict of interest exists between the employer and the employee. . . . It is not believed that the Canon [35] will prevent the labor unions from finding lawyers to advise their members. The whole modern tendency is in favor of such arrangements, including particularly employer and cooperative health services, the principles of which, if applied to legal services would materially lower and spread the total cost to the lower income groups. 32 Mr. Drinker's discussion, it will be observed, recognized the need and the practicalities as well as the dangers to be guarded against. T h e courts, however, have not dealt with old standards in the light of new conditions and needs, as the following two cases illustrate. In the early 1930s a nonprofit corporation, the Association of Real Estate Tax-Payers of Illinois, was organized in Illinois for the protection of real estate taxpayers. Beginning with a few large real estate owners, the corporation, through publicity, expanded its membership to over 20,000 with membership fees based primarily on a percentage of the amount of real estate taxes assessed. In several actions brought in the names of members, the association attacked the validity of taxes assessed. T h e reasonable fees and expenses in the several actions, if borne by one person, would have been $200,000. T h e average membership fee for repDRINKER, op. cit. supra note 9, at 164, 167.

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CLASSES

resentation by the members was about $15. T h e State's Attorney of Cook County brought an original proceeding in the Supreme Court of Illinois to have the Association punished for contempt of court for engaging in the practice of law. Some years earlier the Court had before it a case of a bank which through salaried lawyers engaged in the general practice of trusts and estates law for profit. It held that the bank was violating the rule that a corporation cannot practice law and it imposed a fine on the banking corporation for contempt of court in engaging in the practice of law. 3 3 T h e language of the earlier case involving a corporation for profit was carried over and applied to the later case involving a corporation not for profit, and again a fine was imposed for its action in contempt of court. 34 T h e Court stated: " T h e fact that the respondent was a corporation organized not for profit does not vary the rule." T h e second illustration, from California, is a widely litigated plan of the Brotherhood of Railroad Trainmen which through its " L e g a l A i d Department" aided its members and their families in investigating accidents and unearthing the evidence. T h e plan involved the designation, by the Brotherhood, of lawyers in districts throughout the country whom the Brotherhood

would

strongly recommend to its members, with the members left free to retain those lawyers or others. T h e designated lawyers, experienced in this field of practice, agreed to limit their fees to 25 percent of the amount recovered and to pay part of the fees to the Brotherhood for the L e g a l A i d Department. T h e majority of the Supreme Court of California held the plan violated the Rules of Professional Conduct of the State Bar of California, which for" People v. People's Stock Y a r d s State Bank, 344 111. 462, 1 7 6 N . E . 401

(1931).

" People ex rel. Courtney v. Association of Real Estate T a x - P a y e r s of Illinois, 354 HI- 102, 187 N . E . 823

(1933)-

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77

bade the solicitation of professional employment and the sharing of compensation with laymen, although the majority recognized "the worthiness of the Legal A i d Department as an enterprise established by the Brotherhood to render valuable services to its members in providing the means for appropriate presentation of their damage claims."

3S

T w o members of the Court dissented. Judge Traynor's dissent has as its cardinal points that professional standards rest on affirmative purposes, and that the application and development of the standards should be guided by those purposes : Given the primary duty of the legal profession to serve the public, the rules it establishes to govern its professional ethics must be directed at the performance of that duty. Canons of ethics that would operate to deny to the railroad employees the effective legal assistance they need can be justified only if such a denial is necessary to suppress professional conduct that in other cases would be injurious to the effective discharge of the profession's duties to the public. Agreeing with the prohibitions against advertising, ambulance chasing, and lay intermediaries because of the evils they bring, the opinion of Judge Traynor examines the situation of the liability insurance company and finds that though the company advertises and is a lay intermediary which furnishes the lawyers for its policy holders, "it is accepted as serving the public good": "Liability insurance is socially desirable; policy holders and the companies are entitled to adequate legal representation; the sensible way to provide such representation is through regularly-retained experts." T h e Brotherhood plan is similar to liability insurance, so the dissenting opinion states, and as it seeks to protect the interests of its members, and since the principal evils that the profession's stand® H i l d e b r a n d v. State Bar, 36 Cai.2d 504, 2 2 5 P.2d 508 ( 1 9 5 0 ) .

7«

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ards condemn are not present, the plan should be approved. T h e fundamental difference between the prevailing opinion and the dissent in the case is that the majority of the court looked to the words of the professional standards, and Judge Traynor in his dissent went behind the words to the purposes of the standards and to the existing conditions. The bar associations, too, have been hostile to group practice. The Canons of Professional Ethics, in treating of "Intermediaries," deal with the matter in Canon 35, the last clause of which is the important one: " A lawyer may accept employment from any organization, such as an association, club or trade organization, to render services in any matter in which the organization, as an entity, is interested, but this employment should not include the rendering of legal services to the members of such an organization in respect to their individual affairs." The Committee on Unauthorized Practice of the L a w of the American Bar Association, in response to a question from the Committee on Professional Ethics and Grievances, gave its opinion on two related questions. T h e first question involved a corporation which wished to retain a lawyer full time, one of whose functions would be to advise its employees on their personal problems; the plan was based on the corporation's desire to improve the morale of the employees and to keep them out of legal difficulties. The second question concerned a labor union which desired to employ a lawyer full time, part of whose duties would be to assist members if they so desired on disputes between the employee-members and the corporation under the union contract, and on their personal problems. In each case the employeemember would pay nothing, since the services would be a part

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79

of the compensation of the employee or one of the services covered by the union dues. The Committee on Unauthorized Practice gave its opinion that both plans would constitute the unauthorized practice of law, as in each instance the corporation would be practicing law and there would be the evils of a lay agency soliciting business and controlling the professional services of the lawyer. 38 T h e Committee on Professional Ethics, feeling bound by the decision of the fellow committee within its special field, believed it necessary to hold that a lawyer who participated in such a plan should be condemned for giving aid in the unauthorized practice of law. 37 Some conclusions are submitted on the conditions that have been described. Much legal service needed by the middle classes is not rendered at all, or else it is performed by laymen inexpert in the law and free from professional control, or it is performed by lawyers who are retained by intermediaries under no supervision by the courts, the profession, or any public body. A companion conclusion is that the old ideal of our profession— the individual independent lawyer directly serving the individual independent client who chooses his own lawyers and pays the fees out of his own funds—is challenged by the facts today. The impersonality of life in large cities means that the prospective client does not know a lawyer or the lawyer's ability and dependability. The organization of our economy into large groups—big business, big labor, big cooperatives—makes the individual increasingly dependent on his position as a member of the group, "Informative 36

A.B.A.J. 57

677

See Aiding 47;

ETHICS NO.

Opinion of the Committee on Unauthorized

Practice of the

Law,

(1950).

the Unauthorized Practice of Law, C A N O N S op. at. supra note 9, at 164-65.

DRINKER,

OF

PROFESSIONAL

8o

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and increasingly desirous of relying on the group in matters beyond its immediate concern, as for example legal as well as medical services. These desires collide with old standards of the legal profession, especially those which call for a direct relationship between the individual lawyer and the individual client unimpaired by a lay intermediary, and which prohibit the solicitation of work for lawyers. A major question is whether the old standards should be applied rigidly to the new conditions. A related question is: if the old standards are to be modified under the new conditions, what safeguards are needed in legal rules and professional standards, so as to maintain the essentials of the lawyer-client relationship and to prevent abuses by shysters masquerading as public benefactors? In dealing with the new conditions the bar association committees have for the most part permitted the old negative rules to control the affirmative opportunities. They have allowed the prohibition pronounced by the Committee on

Unauthorized

Practice of L a w against lay intermediaries to control the affirmative consideration by other committees of how legal services may be brought to the middle classes in a manner consistent with the standards of the profession. Surely the opposite approach is the right one, with the affirmative guiding and controlling the negative. Lawyers exist to act and not to refrain from acting. Their standards like their roles are essentially affirmative, and the professional restraints are intended to ensure the better performance of the affirmative roles. It will be remembered that Judge Traynor in his consideration of the Brotherhood of Railroad Trainmen plan began with the affirmative: "Given the primary duty of the legal profession to serve the public, the rules it establishes to

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81

govern its professional ethics must be directed at the performance of that duty." T h e courts, as well as the bar associations, have too frequently been guided by the Literal application of negative limitations without inquiring into the affirmative purposes which the limitations are intended to aid or into the new conditions and situations under which novel problems are presented. Thus, in applying the rule that a corporation cannot practice law, a court said that a corporation is a corporation, with no consideration of the possible distinction betwen a corporation for profit and a corporation not for profit. Some members of a bar association committee stated that "no amount of data could justify" a plan then under consideration for a new form of bringing legal services to the middle classes. T h e situation brings to mind the old gibe that prohibition should please all, for under it the prohibitionists had prohibition and the liquor men had liquor. T h e situation was bad then as to the prohibition of liquor; it is bad now as to the prohibition of new methods of legal services for the middle classes. T h e fundamentalists have their prohibitions in the Canons and the law that are enforced spasmodically. But the Canons and the law are violated by many lawyers, and their existence encourages the activities of bootleggers outside the bar. There is manifest need for the American B a r Association to take up again what was proposed by its committees in the 1930s and 1940s—a broadly conceived reexamination of the situation, the needs, and the methods of meeting the needs. T h e wider problem was quietly put on the shelf by the Association in 1950, as we have seen, through a change in the name of a committee. 38 " S e e notes 17, 18, supra.

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T h e problem should be taken off the shelf and given the full attention it merits. A number of the bar's concerns converge on this problem. First is the basic matter of the provision of legal services by lawyers to those who need them. Next, there are the standards of the bar designed to ensure that legal services are rendered by those who are competent and loyal. Third, there is the lawyers' desire to have a fair income for their work. These concerns are reflected in the responsibilities of various bar committees. In a helpful discussion of lawyer referral services and group legal services Mr. Paul Carrington mentioned several of these committees, such as the committees on lawyer referral, legal aid, unauthorized practice of law, professional ethics, continuing legal education, and the economics of law practice. 89 Any proposal for change will rightly be examined for its weaknesses and its difficulties. My friend Mr. Richard Haydock, Executive Director of the Legal Referral Service sponsored by the two bar associations on Manhattan, has kindly raised some of the questions. W i l l deterioration in the quality of the services result from the size and impersonality of the organization rendering the services and from the application here of the maxim " H e who pays the piper calls the tune"? Will supervision of any new method be either inadequate or else burdensome, as contrasted with lawyer referral which fits into the framework of the profession? Will the costs of the services rendered be lower in fact, or will they be merely concealed under other items or else shifted to other persons to bear? Is our knowledge of the motivations of prospective clients in retaining lawyers sufficiently dependable to 33

See Carrington, Lawyer

AM. JLD. SOC'Y. 1 3 7

Referral

(1962).

as Correlated

with Other Bar Services,

45 J.

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83

guide the bar in developing new legal services plans—an area of inquiry in which the sociologists might give useful aid? There is need here for the kind of hardheaded judgment as well as imagination and creativeness that lawyers habitually employ for their clients. T h e words of a great judge, written about a friend, emphasize what we all know—that lawyers do take changing conditions into account in planning for their clients and devise new forms appropriate to the new conditions: He [the office lawyer] is a creative agent just as truly as the advocate or the judge. In our complex economic life, new problems call from day to day for new methods and devices. . . . The innovation must still be tested for possible infringements of the behests of public policy and justice. Even so, except in rare cases . . . [t]he courts do no more than set the imprimatur of regularity upon methods that have had an origin in the creative activity of an adviser, working independently of courts in the quiet of an office.40 W h e n this same sort of imagination and creativeness and this insistence on looking to substance instead of to form are directed to our problem, we shall then make accessible to the middle classes the legal services they need. N o one of us is wise enough to propose the precise methods, but I will mention some elements for consideration. One is the element already stressed: the affirmative role of the bar in providing dependable legal services and making them accessible to those who need them should be dominant and the limitations accessory to the affirmative role. Another is that the standards which help to ensure dependable services, like the standard against representing conflicting interests, must be main40

Cardozo, Memorial

Address

OK T H E B A R OF T H E C I T Y

on John

OF N E W

YORK

G. Milburn, 439-40

in YEA* BOOK, ASSOCIATION

(1931).

84

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tained. A third is that precautions must be taken to see to it that sharpers and shysters do not take advantage of new forms to impose or insinuate themselves into the service of those who are especially unable to guard against such fellows. Yet another is if group methods of securing or of providing legal services are approved, there is need for supervision, whether by the courts, by the organized bar, or by a joint body representative of the profession and of the public. This discussion has raised and pressed the question of whether the bar should reconsider methods for bringing legal services to the middle classes, especially the method of nonprofit groups. The discussion will end with another question, one of constitutional law: are organizations which furnish legal services protected by the Constitution from condemnation (as lay intermediaries have been condemned by state laws or professional standards) ? The question was made explicit by the Supreme Court of the United States a month and a half ago in National Association for the Advancement of Colored People [ N A A C P ] v. Button,41 which involved the activities of the N A A C P in encouraging and conducting through its legal staff litigation directed against racial segregation in schools and other public activities. The state of Virginia, as a part of its massive resistance to integration, had passed two statutes which though clearly aimed at the N A A C P were general in terms and prohibited the stirring up and conduct of litigation by outsiders. The N A A C P filed suit to have the statutes held inapplicable to its activities or else unconstitutional. The Virginia Supreme Court of Appeals applied one of the statutes and upheld it as a proper regulation of the work of the " 3 7 1 U.S. 4 1 5 ( 1 9 6 3 ) . C h a m p e r t y , maintenance, and barratry in the context of racial integration controversies are discussed in . V o t e , Inciting Litigation, 3 RACE RKL. L . REP. 1 2 5 7 ( 1 9 5 8 ) .

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legal profession. T h e Supreme Court of the United States, though divided in opinion, reversed the Virginia decision and held the statute unconstitutional in its application to the N A A C P . Mr. Justice Brennan, speaking for five members of the Court, did "not reach the considerations of race or racial discrimination." H e explicidy placed the decision on the ground that the activities of the N A A C P , its affiliates and legal staff shown on this record are modes of expression and association protected by the First and Fourteenth Amendments which Virginia may not prohibit, under its power to regulate the legal profession, as improper solicitation of legal business violative of Chapter 33 [of the Virginia statutes] and the Canons of Professional Ethics. Mr. Justice Harlan, in a dissent written for three of the justices, makes clear the direct application of the decision to our field: " [ T ] h e striking down of this Virginia statute cannot be squared with accepted constitutional doctrine in the domain of state regulatory power over the legal profession." Mr. Justice White concurred specially in the decision of the majority, for he would uphold the right of the N A A C P to encourage and finance litigation of this kind and to recommend particular lawyers, but would proscribe the "day-to-day management" of the cases. Mr. Justice Douglas, while joining in the opinion of the Court, would have struck down the statute on the further ground that it sought to penalize the N A A C P because it promotes desegregation of the races. T h e several opinions cite the decisions drawn on in this lecture in addition to more material on our profession. Mr. Justice Brennan opened the question of the protection of lay intermediaries which furnish legal services but left the answer to another day, saying: " W e intimate no view one way or the other as to the

86

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merits of those decisions with respect to the particular arrangements against which they are directed." T h e decision and the opinions suggest some conclusions. One is that lay intermediaries of varied sorts will shortly urge constitutional support for their activities. 42 Another is that it is urgently necessary for the bar to consider what measures are needed to bring legal services to the middle classes and what regulations are necessary to prevent abuses. Finally, in the words of M r . Justice Harlan, "at this writing it is hazardous at best to predict the direction of the future." " T h e Supreme Court has before it as these lectures are given a modified form of the plan of the Brotherhood of Railroad Trainmen outlined above at note 3 5 . T h e Brotherhood urges that the plan is protected by the First and Fourteenth Amendments to the Constitution and by the Federal Railway Act. Brotherhood of Railroad Trainmen v. Commonwealth of Virginia, No. 583, October T e r m , 1962.

â SPECIALIZED

LEGAL

SERVICES

In the olden days there were giants of learning, men who took all knowledge for their province. In late medieval times some of them roamed western Europe challenging all comers and all questions. T o one of them in Flanders, Sir Thomas More put a point of the common law: "Whether beasts of the plough taken in withernam are incapable of being replevied?" 1 Before this simple question the giant quailed and fell. Perhaps some members of this learned gathering would be somewhat perplexed. On the sources of physical power you would be more conversant with the law as to the atom than with the law as to beasts. You would be readier to consider the law of outer space than the law of ploughland. Today no one would dare assert omniscience. Our times are unique in history because of the swift development of the natural sciences and derivative technologies and their impact on society. There is in sight not the end of these developments but the possibility through them of a transformation of society still greater than that already wrought. The historian Trevelyan made the point over a decade ago: My friend Sir Lawrence Bragg, the Head of the Cavendish Laboratories in Cambridge, recently gave a lecture in which he said that 'See

CAMPBELL,

BLACKSTONE

LIVES

OF

COMMENTARIES

THE

LORD

CHANCELLORS,

148 (Lewis ed. 1902).

ch. 31 (7th ed. 1878); 3

SPECIALIZED

88

LEGAL

SERVICES

the advancc of science and invention in our times was bringing about a change in the economic and other conditions of man's life which would, ere long, have produced as great a change as that produced by the practice of agriculture some thousands of years ago. Agriculture enabled wealth to accumulate and town life to begin, and thereby made the civilizations of which we know, ancient, medieval, and modern, up to the time of this further change now taking place. 2 Paralleling even if not matching the natural sciences are the g r o w t h of the behavioral sciences and the intensification of humanistic studies. T h i s expansion of k n o w l e d g e has led to consequent specialization in study and proficiency. T h e expansion and the specialization are illustrated in all institutions of study and research whether universities or foundations or the institutes of government or business. In the recent and f a r simpler past there were legal giants w h o took for their province all law and its neighboring disciplines. T h e work of one of the most notable of them was described by his biographer: " [ R u f u s ] Choate w a s versed in every phase of the profession. . . . Choate, at various times, w a s psychologist, sociologist, neurologist, alienist, and father confessor, as well as a t t o r n e y . " 3 T h e r e are still alive m e n w h o assert membership in this species of legal giants. T h e i r claim brings to m i n d M a r k T w a i n ' s w a r n i n g which runs something like this: " I t ain't w h a t a man don't k n o w that hurts. It's what he k n o w s that ain't so." A l l of the immense and continuing developments in other fields of k n o w l e d g e may be of importance and may find reflection in l a w . T h e y have made the law ' TREVELYAN,

ENGLISH

LITERATURE

T H E E N C L I S H ASSOCIATION 7 * FUESS, R U F U S CHOATE

140

(I960). (1928).

AND

ITS

READERS,

PRESIDENTIAL

ADDRESS,

SPECIALIZED

LEGAL

SERVICES

89

so diverse in subject and so developed in detail that no lawyer can have an adequate working or even beginning knowledge of the law on all the matters that may naturally come into the office of the general practitioner. Nor can any lawyer now acquire an adequate working knowledge of the law on all these matters in a length of time that will make practicable fees which are fair to the client and to the lawyer. T w o personal incidents indicate the speed and extent of change. Public utilities is a subject I taught in the 1920s. In the 1950s I attended a meeting of the Section on Public Utilities of the American Bar Association. The topic discussed was outside anything I had ever dealt with and beyond the reach of even the most gifted when I worked in the field—it was the use of atomic energy and its effect on the regulation of public utilities. The other experience was vicarious. In 1947 I gave a talk to the Southeastern Conference of Law Teachers on the future of legal education. Feeling the need of practice in prophesying, I began by taking my stand in 1897 and predicting what would happen in the fifty years to come.4 My prophecies were as astounding in the range of change as in the accuracy of detail, for I was bold enough to predict on politics and the physical sciences as well as on law and legal education. As for law I predicted that while in 1897 the volumes of the U.S. Supreme Court and the Federal Reporter did not contain a single case on internal revenue, fifty years later one volume would require ten pages of the index for that subject alone. If today you would take your stand as prophet in 1913, and predict fifty years ahead, your predictions would be even more astounding in range than were mine as of 1897. Changes are disturbing to all of us for they compel us to get ' C h e a t h a m , Legal Education—Some

Predictions,

26

TEXAS L. REV.

174 ( 1 9 4 7 ) .

SPECIALIZED

9°

LEGAL

SERVICES

out of the pleasant grooves of habit. Y e t the great changes in the recent past and the greater ones impending, which force us out of the old grooves, are sources of opportunity as well as of disturbance. T o law and to lawyers they give a double opportunity. One is an opportunity to help deal with these changes in the large. T h e adjustments and developments in the law will do much to determine whether the scientific changes and the social pressures they generate will be benevolent or catastrophic for our society. T h e other is an opportunity to help deal with these changes in the small, for particular individuals. It is the latter aspect to which I call your attention, for these remarks so far are directed to the needs of particular persons and to lawyers as instruments of the satisfaction of these needs. One obvious matter is that there is need for specialization and specialists among lawyers. T h e need is made manifest by the fact of specialization at the bar, one illustration of which is the specialization of the corporate bar described by Judge Learned H a n d in an earlier lecture. 5 T h e second conclusion is that there is need for something other than a man who knows more and more about less and less of the law. T h e client is not merely a point or problem of law. H e is a human being who seeks advice and help in meeting a problem with personal as well as legal aspects. His problem even if looked at as an impersonal case at law often cuts across several fields of law, and its parts are not fragments isolated f r o m one another. So there is need for a lawyer w h o has the judgment and wisdom to see and to deal with the client's problem and its various specialized elements as an integrated whole. In a word, there is need, too, for "Hand, Have the Bench and Bar Anything Law?,

to Contribute to the Teaching of

i n PROCEEDINGS, ASSOCIATION OF A M E R I C A N

LAW

SCHOOLS 4 5 ,

56

(1925).

F o r a v i v i d account of the d e v e l o p m e n t , sec LEVY, CORPORATION LAWYER, SAINT OR S I N N E R ?

(1961),

SPECIALIZED

LEGAL

SERVICES

91

a "generalist," a word that has recently made a place for itself in the dictionary. The dictionary definition is: "Generalist: one who devotes himself to, is conversant with, or can handle several different skills, fields or aptitudes—opposed to specialist." 6 I question the last phrase in the definition, at least for our purposes. A generalist in law is not "opposed" in the common sense of the word to a specialist. Rather, he is one who complements the specialist and integrates different specialized skills into an over-all conclusion for the case and the client. Even generalists vary in their elements of strength. One may be acute in analysis and in perception of the several facets of the legal and human problem, another may be wise in judgment and counsel, and yet another effective in negotiation and settlement. From its earliest days the American profession has been accustomed to the generalist. The advent of the specialist has brought difficulties. The principal points of impact of the problems on the profession are three: legal education, the practitioner, and the organized bar.7 For the law school the problem is: how much specialization should it permit or encourage or require? The question can be put as well from the side of the law student. The answer for the school and for the student depends on the purpose of specialization in law school. Is the purpose to enable the student to acquire a thorough knowledge of a particular field? Or is it, rather, to ' W E B S T E R ' S THIRD N E W INTERNATIONAL DICTIONARY 'At

this point

my

colleague,

Professor

Robert

(1961).

Covington,

very

kindly

a n d h e l p f u l l y r e a d t h e s e l e c t u r e s in m a n u s c r i p t , w r o t e d o w n a c o m m e n t :

who

"Much

as I h a t e to s a y it, I t h i n k t h i s l e a v e s o u t a n e q u a l l y s i g n i f i c a n t p o i n t of

impact:

t h e d e c i s i o n - m a k e r . S h o u l d w e let o u r f e d e r a l c o u r t s of g e n e r a l j u r i s d i c t i o n t a x , l a b o r , p a t e n t m a t t e r s at a l l ? . . . A n d

if t h e c o u r t s m u s t h a n d l e

handle

specialists'

p r o b l e m s , s h o u l d t h e y b e a l l o w e d r i g h t s to c o n s u l t p a n e l s of specialists w i t h i n without the p r o f e s s i o n ? "

or

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92

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SERVICES

help him to develop his intellectual powers and to widen his understanding by going deeply into some one field? If left to himself, many a student would grasp the first purpose. In the last years of the elective system in college, a contemporary of mine took eleven out of his sixteen college courses in the field of chemistry. A wiser choice is indicated by a comment Judge Bernard Shientag made: the most helpful work he had in the Columbia Law School was in a subject in which he never had a case in practice. T h e subject was that old quagmire, the New York law of perpetuities and trusts and powers. By going into the subject deeply he developed abilities that could be used in other fields. For the young practitioner there is the question of whether he should specialize and which field he should choose. If he decides to specialize, what should he do after his first degree in law: should he go on with graduate work in law school, or depend for development on his work in a government department or in practice, or may he combine two of these methods? T h e answers may turn on individual factors like temperament, abilities, or opportunities. For established practitioners there are two markedly different situations. One is that of the large firm with specialized resources within it. T h e client of such a firm can be sure that the member he sees will draw on the specialized abilities of other members of the firm. T h e method is excellently described by Mr. Harrison Tweed in his Cardozo Lecture: The reason for the existence of law partnerships is not the possession of a big client but the need to bring together a group of lawyers collectively qualified to do the things that those of the public sought as clients want done and want done well. The law firm makes available to its clients a number of lawyers

SPECIALIZED

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93

each of w h o m possesses at least one of the special skills needed by the clients. . . . [In addition] [t]here is a demand for one partner with the ability to advise business clients on broad and crucial questions of policy although he may be less expert in any one area of the law than his partners. . . . T h u s , f r o m the large firm there may be obtained by a client precisely the close and confidential counselling which is in the best tradition of the Bar. 8 T h i s m e t h o d is, in fact, the g r o u p practice of l a w . It is e m p l o y e d not so m u c h f o r reasons of e c o n o m y a n d l o w e r charges to clients — r e a s o n s at times u r g e d f o r g r o u p practice of m e d i c i n e a n d of l a w f o r p o o r a n d m i d d l e class clients—but f o r better p r o f e s s i o n a l services. T h e other situation is that of the solo practitioner or s m a l l partn e r s h i p w h i c h does not possess w i t h i n the office the specialized resources n e e d e d by the client. T h e m a g n i t u d e of the situation is revealed by statistics. F a r m o r e than half of the l a w y e r s of this c o u n t r y practice either alone o r in v e r y s m a l l f i r m s . M o s t of t h e m are generalists. T h e y c a n n o t r e n d e r to all of their clients the services the clients n e e d over the w h o l e r a n g e of practice. F a r o f t e n e r than they a d m i t , they a n d their clients need the aid of specialists. T h e third point of i m p a c t of specialization o n l a w y e r s is the o r g a n i z e d bar. O n e m e a s u r e a l r e a d y u n d e r t a k e n is the i m p r o v e m e n t of c o n t i n u i n g legal e d u c a t i o n o n various levels of expertness w h i c h w a s discussed and a d v a n c e d at a n A r d e n H o u s e

Con-

ference. 6 A n o t h e r a n d f a r m o r e difficult p r o b l e m is the c o o r d i n a t i o n of 'TWEED,

also 48

TWEED,

A.B.A.J. 'See

C H A N G I N G P R A C T I C E OF L A W 1 3 (Cardozo Lecture, 1 9 5 5 ) . See The Changing Practice of Law: The Question of Specialization,

THE 423

(1962).

JOINT C O M M I T T E E

ON C O N T I N U I N G

L A W I N S T I T U T E AND T H E A M E R I C A N

L E G A L EDUCATION

OF T H E

AMERICAN

B A R ASSOCIATION, C O N T I N U I N G L E G A L

TION FOR P R O F E S S I O N A L C O M P E T E N C E AND R E S P O N S I B I L I T Y

(1959).

EDUCA-

94

SPECIALIZED

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SERVICES

the three parties to the professional triangle: the client, the generalise and the specialist. 10 Before considering the task in the American legal profession it may be useful to glance at coordination in another country and then in another profession. In E n g l a n d there is specialization and coordination in the legal profession. A manifest form is the division into the two branches of the profession, the solicitors and the barristers. There is specialization in fact within the ranks of the barristers, as in chancery work, a specialization aided by the fact that the solicitors who choose the barristers know well the field of effectiveness of their fellow lawyers, the barristers. There is specialization by firms of solicitors. A n d there is cooperation of the generalist and specialist through the practice of a solicitor taking the opinion of a barrister on fields of law within which the barrister is expert. Medicine with its highly developed system of certification provides a striking analogy. In 1959 it had examining and certifying boards in nineteen specialties, which over the preceding eighteen years had granted 77,447 certificates of proficiency. 1 1 There was no hasty growth of certification. T h e first board was created in 1915, the second, nine years later in 1924, and most of the rest originated in the 1930s. So the system, growing slowly at first, developed only after its usefulness was proven. There are criticisms of the operation of the system and warnings lest the specialist become a mere narrow technician. There is no thought, however, of abolishing specialties and of returning to a system 10 Dean Russell Niles has argued forcefully that "the most difficult problems are ethical," not those of proficiency and certification. See Niles, Ethical Prerequisites to Certification oj Special Proficiency, 49 A.B.A.J. 83 ( 1 9 6 3 ) . u Requirements for Certification, American Specialty Boards, 171 J. AM. MED. A. 806 (Oct. 10, 1959).

SPECIALIZED

LEGAL

SERVICES

95

under which all physicians would be general practitioners. While medicine is a striking analogy, it may not be a close one. 1 2 Medicine and law differ greatly in the development and precision of the underlying sciences, in the facilities for postgraduate work under supervision, and in the methods of practice. It would be impossible to transfer the system of medical certification to law, and law must work out its own system. A f t e r these two detours to England and to medicine, I return to our problem of law in the United States. There are two general courses the organized profession may take toward specialization. One is laissez faire. Laissez faire means only that the bar associations will remain unmoved. It cannot mean that conditions will remain unmoved and the forces of change suddenly halt. Though the associations decide on a policy of abstention, specialization in practice will continue to grow and develop, but without aid, direction, or control by the bar associations. T h e wise generalist will continue to seek a competent specialist, and specialists, real or assumed, will continue to offer their services to the generalist or to the public. T h e other method is for the organized bar to interest itself in the developments and to aid in working out a system of coordination of the client, the generalist, and the specialist which will protect all interests involved. Both methods have been discussed by the American Bar Association. A f t e r long abstention the Association in the early 1950s undertook a consideration of the matter, but dropped it within two years. In 1961 the Association made a fresh start through a special committee which has submitted proU

A

h e l p f u l criticism of the a n a l o g y of m e d i c i n e a n d l a w is g i v e n in S i d d a l l ,

Specialization

in the Law:

A.B.A.J. 625

(1956).

A Retort to Professor joiner's

Call for Control,

42

96

SPECIALIZED

posáis for the Association's characterizes the proposals tinuing educational effort, states his conviction on the

LEGAL

SERVICES

consideration. 1 * In an article which as a beginning in another long-cona member of the special committee need to promote specialization:

For years I have been convinced that the survival of the legal profession (at least, its retention of its present monopoly of practice in some areas) and the public interest—and, as a poor third, the increase of lawyers' incomes—all demand a substantial raising of the level of competence in practice. And I see no way to do it except by promotion of specialization in the proper sense.14 W i t h the decisions still in the making by those in authority, some comments may be in order. T h e interests of the three parties concerned in the coordination —the client, the generalist, and the specialist—interlock and are difficult to disentangle. Yet it is useful to look at the problem comm o n to all of them f r o m the viewpoint of each in turn. T h e particular client is entitled to competence from the lawyer he employs. A n expert in will-drafting made the point in ethical terms: " [ 0 ] f all the moral obligations of the lawyer who undertakes to prepare a will the obligation of competence is paramount. . . . If the lawyer doubts his ability to produce the best possible will for the client, he should decline to prepare one." 1 5 Mr. Drinker has drawn a conclusion as to association of a specialist with the generalist: "A lawyer should not presume to undertake professional employment for which he is not reasonably competent " T h e recommendations of the Special Committee on Recognition and Regulation of Specialization in Law Practice were reported to the Association by the Chairman, Mr. David F. Maxwell. See 48 A.B.A.J. 983 ( 1 9 6 2 ) . " C a n t r a l l , A Country Lawyer Looks at "Specialization," 48 A.B.A.J. 1117, 1 1 1 9 ( 1 9 6 3 ) . See also Randall, The President's Page, 46 A.B.A.J. 575 (i960). " M i l l e r , Function and Ethical Problems 0/ the Lawyer in Drafting a Will, 1950 111. L. F. 415, 419, 423.

SPECIALIZED

LEGAL

SERVICES

but should recommend or at least associate a specialist."

97 16

In

medicine, where specialization is better known to the public, the recommendation or association of a specialist has begun to take form as a legal requirement based on the standards of the profession. 17 W h e n in our "claims-conscious" generation lawyers are as ready to sue one another for incompetence and negligence as they are to sue physicians for malpractice, this unfraternal attitude will quickly make the bar see the utility of the specialist. 18 Clients as a whole, that is, the public, can be informed by the organized bar that there may be need for the specialist as well as the generalist in law. Ingrained assumptions of the omnicompetence of the lawyer may at first make this difficult for clients to grasp. In medicine the patient who is told by the general practitioner that he needs the services of a specialist, too, will accept this as a mark of the care of his physician. In law the client given this advice may take it as proof of the incompetence of his lawyer. T h e same assumptions of omnicompetence, by lawyers themselves, may for a time make generalists resent a plan that seems to reflect on their ability to handle their clients' cases. T h e client must be protected from double fees or excessive charges. For the protection of the reputation of the bar he must believe there are no such excessive charges. T h e specialist and the generalist together can, in fact, give him better services at as low a charge as the generalist alone, and he should be made to see this is so and why it is so. T h e specialist needs, first, the identification of himself as one " D R I N K E R , LEGAL ETHICS 1 3 9

(1953).

"See McCoid, The Care Required of Medical Practitioners, 12 VAND. L . 540. 597 (i')5l>): Annot.. 1 3 2 A. L . R . ( 1 9 4 1 ) . "See Wade, The Attorney's Liability for Negligence, 1 2 VAND. L . RF.V. (i959)-

REV. 755

98

SPECIALIZED

LEGAL

SERVICES

who meets standards of proficiency. It is this need to which the American Bar Association committee has primarily directed its efforts so far, with the proposal that standards of proficiency be formulated by agencies of the Association and certification of proficiency be effectuated within the Association. T h e difficulties in the way are manifest. T h e insight, understanding, and judgment so essential in our professional work are difficult to test, yet the standards of proficiency must be something more than paper standards if they are to be meaningful. T h e table-thumper and the client-getter could not meet even the paper standards, so they would naturally resent them. T h e established and competent specialist, too, would object to a test of proficiency which, unless there is to be a grandfather clause, might be more readily met by one of half his years and ability. T h e resentment would be all the greater when the young but inexperienced fellow who passes examinations with the greatest of ease flaunts on his walls and in conversation the certificate which his elder feigns to disdain. T h e second need of the specialist is to have himself made k n o w n to the generalist. T h e American Bar Association committee has proposed that this be done in ways approved by the Committee on Professional Ethics. Committees on professional ethics have already given their approval to cards sent by specialists to generalists and to similar advertisements in newspapers that circulate principally among lawyers. Some state bar associations have had "an experienced lawyer service" through which a general practitioner may secure the names and background information of m e n w h o are experienced in various fields. Perhaps this use of background information within the profession, together with certification, would be an adequate way of enabling the generalist to choose his associate wisely, say, to choose between

SPECIALIZED

LEGAL

SERVICES

99

the certificate holder and the experienced but uncertified practitioner. Time may help to solve the problem, once a system of certification is established. The able men will seek the certificate in their youth, and the uncertified but able specialist will slowly disappear from the bar. Specialization may threaten the self-esteem and the clients of the generalist. The threat to self-esteem will abate if the bar makes known, as it should, his continuing importance and the client's continuing need for him. It is gratifying to observe that the newly established Section on General Practice of the American Bar Association already has a large membership. The threat to his clients is both general and individual. As to the general threat, the less scrupulous specialist may disparage his brethren of unconcentrated ability. By excessive claims and quiet publicity he may make prospective clients believe that the generalist is not needed and that one fee to one lawyer is better than two fees to two lawyers. For the individual threat, the client who goes to the specialist on recommendation of the generalist may thereafter abandon his old lawyer, the generalist. The danger is the greater because the present bar association plans do not contemplate confining a certified specialist to his specialty. He may engage in the general practice of law, too. Under the English practice of the solicitor taking the opinion of an expert barrister there is no such danger of client-stealing, for the lay client goes to a solicitor first and may not go directly to the barrister. The method of association of the generalist and the specialist for a particular client or case has been called an "ad hoc partnership." 19 The Canons of Professional Ethics deal with professional 19 Joiner, Specialization in the Law: Control It or It Will Destroy the Profession, 41 A.B.A.J. 1 1 0 5 (1955).

100

SPECIALIZED

LEGAL

SERVICES

cooperation in Canon 7, which assumes that it is the client w h o makes the move for additional counsel, and in Canon 34, which condemns divisions of fees except when there is a division of service or responsibility. T h e former Canon gives an emphasis outmoded in these days of specialization, since it may now be the professional responsibility of the lawyer consulted to recommend the cooperation of another lawyer. T h e latter Canon does not stand in the way of cooperation and division of fees when, as is assumed in this discussion, the generalist does not merely refer the client to the specialist to handle the case but continues as guide and coordinator. So far the discussion has been directed to specialization within the law—to the fact of specialization, the need for the specialist in many cases, and the bar associations' part in the coordination of the work of the generalist and the specialist. There is another area of specilization and of specialists outside law that may be important for the lawyer and his clients and that needs mention. T h e area referred to is not the natural sciences with their transforming effects on society that must be reckoned with by law and lawyers. N o r is it the humanistic studies, though the ethical factors are among the most powerful of what Chief Justice Stone, in his last report as Dean, called "the energizing forces" that are constantly remaking the law. T h e area is that of the behavioral sciences— economics, political science, sociology, and psychiatry. On legal education, notably at Columbia University, these studies have already had a profound effect, as a perceptive and candid critic observed: The most significant development in American legal education since 1870 is the movement toward reorganization of courses along functional lines and toward the broadening of law school studies to in-

SPECIALIZED

LEGAL

SERVICES

IOI

elude nonlegal materials, chiefly from the social sciences, which are relevant to legal problems. The movement may be regarded as having had its origin in the extensive studies of legal education undertaken by the faculty of the Law School of Columbia University in 1926-27 and 1927-28. 20 This is not the time to discuss these efforts or their precursors; 2 1 or the excessive hopes, the disappointments, the renewal of efforts, and the measure of achievement in many law schools. N o r is it the time to do more than mention some of the varied uses in law of these sciences, as by the practitioner in his evidence or his argument, the judge in his decision and opinion, the legal scholar in his criticism and proposals on the law, or the social scientist in his observations and findings of our profession and its working. What is relevant to our discussion is the development of practitioners in this area. Until the latter part of the nineteenth century the lawyer was almost the only expert in the field of human relations. Following close behind the extension of knowledge by the social scientists came the development of new groups seeking to apply this knowledge to human affairs. They like to call themselves professions, since it is of the essence of a profession that its members apply accumulated knowledge to the individual case. T h e economist, the political scientist, the sociologist, and the psychologist have stepped out of the universities into business and into the government bureaus formerly dominated by lawyers. T h e desire to understand human action and the need to deal with hampered or twisted personalities have produced the psychologist, 20 Currie, The Materials oj Law Study, Part Three, 8 J. LEGAL ED. I ( 1 9 5 5 ) . See also Currie, The Materials oj Law Study, Part One, 3 J. LEGAL ED. 3 3 1 , 3 3 2 -

34 ('95i). a

See Currie, The Materials of Law Study Part One, 3 J. LEGAL ED. 3 3 1 , 378-83

(>95i)-

SPECIALIZED

102

LEGAL

SERVICES

the criminologist, and the social worker. Increased efforts toward the clarification of business conditions have created the statistician and the accountant. T h e members of the bar have at times the opportunity and, it may be, the duty to employ the new knowledge for their clients. A reply to a questionnaire sent out for the Survey of the Legal Profession put the matter succinctly: " T h e lawyer cannot properly advise and counsel his clients without the assistance of experts as well as of lawyers who specialize in particular fields. It is suggested that a Canon should be framed stressing the duty of a lawyer in giving counsel and advice to utilize the services of such experts." 2 2 A well-known treatise affirms that: "Estate planning, in its modern sense, is a team job." 2 3 T h e book continues that the team "ought properly to be captained by the lawyer." T o me also this captaincy seems proper. But I remember my experience in a Columbia University seminar on the professions made up of faculty members from the social sciences and the professions, in which each one seemed to believe that his field was the central one in the consideration of the case and that the others were concerned with mere techniques. When there is this cooperation with lay specialists the terms of cooperation will take into account the Canons of Professional Ethics which prohibit division of fees for legal services with laymen and the furtherance of the unauthorized practice of law. B u t the situation is not one of unauthorized practice of law by ignorant and unskilled men. It is the utilization of men of greater knowledge and skill in their fields which is of importance for our clients. These men should be recognized for what they are—col23

McCracken, Report

on Observance

3 7 VA. L. REV. 399, 4 2 1 23

SHATTUCK k

by the Bar oj Stated

Professional

Standards,

(1951).

F A R R , A N E S T A T E P L A N N E R ' S HANDBOOK § I

( 2 d ed.

1953).

SPECIALIZED

LEGAL

SERVICES

103

laborators in the common task of advising and guiding the public. T h e behavioral sciences have not yet attained the precision of the natural sciences. So law cannot rely on them as medicine does on the natural sciences. Yet the behavioral sciences are refining their methods and becoming more precise and dependable in their conclusions, with regard to groups and to individuals. There will be an increasing realization of the need for them in law. Some future worker in law may be able to match as to his own work the statement of one of the great men of medicine about his own w o r k : "a lifelong attempt to correlate with art a science which makes medicine, I was going to say the only—but it is more civil to say the most—progressive of the learned professions." 2 4 "OSLER,

THE

OLD

HUMANITIES

O S L E R , A W A Y OF L I F E 9

(1951).

AND T H E N E W

SCIENCE

(1919),

reprinted

in

e THE

PUBLIC

INTEREST

" W h a t is good for General Motors is good for the country." T h i s was the statement of a leader of industry new to the rhetoric of politics. It deserves to be remembered for it reflects so well the self-centered view of groups in our society. If made by an equally frank leader of any other group, the statement would have begun much the same way, as " W h a t is good for General Motors' dealers," " W h a t is good for General Motors' workers," " W h a t is good for oil-well owners," " W h a t is good for wheat growers," and have ended exacdy the same way, "is good for the country." T h e statement is indicative of assumptions that underlie our economic and social system. It is indicative as well of our political and legal assumptions and hopes, that the striving of the members of our society to advance their separate interests is the best way to coordinate these interests. Furthermore, it is the best means of reconciling the individual and group interests with the wider public interests that may be affected, though not consulted, in the decision. T h i s striving of individuals and groups is at the heart of our liberal democratic society. T h e dislike of outside interference was echoed in the aphorism of a great modern leader that the right most valued by civilized men is the right to bet let alone. 1 T h e 1

478

Mr. Justice Brandéis dissenting in Olmstead v. United States, 277 U.S. 438, (1928).

THE PUBLIC

INTEREST

105

excesses of totalitarian governments of the right and of the left strengthen our determination to preserve the liberties of citizens by holding governmental interference within bounds. The discussion so far has gone along the same line. It has dealt with the ordinary case in or out of court. It has urged adequate representation of the individual in controversy with another individual or with government. It has been based on the conviction that persons to be affected directly by a decision are entitled to be heard through their representatives in the making of the decision. It has rested on the assumption, too, that the hearing for the persons to be affected directly is the essential that fairness demands. What if the assumptions on which we have gone are too narrow and ignore important facts? Then we may have to broaden our view of what is called for, if we are to achieve the purpose of providing a lawyer or other representative when needed. I will suggest three departures from the assumptions stated. Let us suppose, first, that the decision in question will affect not merely individuals but large groups and, even more important, will affect groups who are not immediate or ostensible parties to the controversy or the public at large. Suppose, again, that the decision-making body is not a court, but a legislature, an administrative commission, or even the parties themselves. If the last part of the supposition as to the parties themselves making the decision seems odd, then recall the fact we all know that the law gives wide power to persons to fix their rights and that much of the work of most lawyers is devoted to aiding parties in doing so. T h e exercise of the power by the parties has the result stated by the most noted of modern codes in language equally applicable in the common law: "Agreements legally formed have the force of

THE PUBLIC

io6

INTEREST

law over those who are the makers of them." 2 Suppose, finally, that the guides of decision are not settled rules of law, but rather undefined conceptions of justice or merely the interests of the parties making the decision. T h e suggested departures from the usual assumptions are supported, in part at least, by the Solicitor General of the United States in an article on the litigation before the Supreme Court of the United States: The point is that in many cases the real contest is not so much between individuals and business corporations as between institutions and ways of life; and in reaching decisions this fact is explicitly recognized. . . . Indeed an extraordinarily large proportion of the most fundamental issues of our times ultimately go before the Supreme Court for judicial determination. . . . Perhaps it is an [no] exaggeration to suggest that in the United States we have developed an extraordinary facility for casting social, economic, philosophical and political questions in the form of actions at law and suits in equity, and then turning around and having the courts decide them upon social, economic and philosophical grounds. . . . 3 T h e issues before the Supreme Court of the United States are but an end product of the issues and questions that constantly arise for decision by all tribunals in our country. Their breadth and importance naturally prompt an inquiry into what is needful in the representation of the public interest at the earlier or later stages of what the Solicitor General calls decisions of "social, economic, philosophical and political questions." M y suggested inquiry is not into what is the public interest or 'CODE

NAPOLEON art.

1134.

* Cox, The Nature of Supreme Court Litigation,

94 (1961)-

45

J.

AM.

JUD.

SOC'Y.

93,

THE PUBLIC

INTEREST

107

what arc its components. T h a t troubling question has been raised and argued by reflective men at least since the days of Socrates. It has been put in varied forms, as what is justice, what is virtue, or what is the highest good ? T h e answers offered have varied as widely as the questioners, from the saint who was loyal to his Lady Poverty to the worshippers of the economic gods. This inquiry is much more restricted. It is limited to the process or method of representing the public interest and does not extend to the result. Earlier discussions, to draw a parallel, did not assume that the hated or the poor always had justice on their side. They assumed only that fairness calls for a representation of the individual in a case affecting him. Here it is assumed that the public interest may call for representation in the contest and coordination of various private interests under our design of democracy. 4 Even so limited an inquiry might deserve a large volume instead of a short lecture. But it may be of use to raise the inquiry in the context of these discussions if for no other purpose than to remind us that representation of private interests in controversy in our complex and closely knit society falls far short of representation of all the interests affected by controversy and its decision. Underlying consideration of protection of the public interest is the abiding problem of political and social power, its possession, its abuse, and its control. A n astute student of classical governments gave his conclusion on the universal threat of abuse and need for control: " T h e record of civilized states seems to show that no subdivision of the community, either a dynasty or a rank or a class or an army or a priesthood, is sufficiently well informed or wise or tolerant or unselfish to be entrusted for long, without control of responsibility, with the powers and temptations of ' See GOBLE, THE

D E S I G N OF D E M O C R A C Y

(1946).

THE PUBLIC

io8

INTEREST

g o v e r n m e n t . " 5 Justice Brandeis, dissenting in a case w h e r e he w o u l d have permitted labor unions to conduct a boycott of a manufacturer a n d his customers, added a caveat directed to the superiority of duties to the c o m m u n i t y over all rights and to the limited function of the courts in determining w h e n these duties prevail over private interests: All rights are derived from the purposes of the society in which they exist; above all rights rises duty to the community. T h e conditions developed in industry may be such that those engaged in it cannot continue their struggle without danger to the community. But it is not for judges to determine whether such conditions exist. . . . This is the function of the legislature, which while limiting individual and group rights of aggression and defense, may substitute processes of justice for the more primitive method of trial by combat. 8 I will discuss briefly three situations that involve the existence a n d control of power. T h e first concerns the extent of the p o w e r of the U n i t e d States under the Constitution. T h e power m a y be challenged a n d the validity of an A c t of Congress questioned in a case between private persons though the government is not a party to the case. T h i s method of deciding important public questions in private litigation w o n the praise of a noted critic. 7 Y e t the method has come to seem unwise and u n f a i r under w h i c h the p o w e r of the g o v e r n m e n t can be determined without the g o v e r n ment being represented and heard. I n 1937 a statute w a s passed w h i c h provided that in any proceeding in a federal court w h e n 'ZIMMERN,

THE

GREEK

COMMONWEALTH p.

2, ch. I V , at

107

(1911),

which,

as Professor Freund has said " w a s the book most likely to be recommended by Brandeis to friends in his late years." FREUND, THE SUPREME COURT OF THE U N I T E D STATES 1 4 3

(1961).

" D u p l e x Printing Press Co. v. Deering, 254 U.S. 443, 488 ( 1 9 2 1 ) . ' BRYCE, THE

AMERICAN

COMMONWEALTH c h .

xxiii

(2d

ed.

1889).

THE PUBLIC

INTEREST

the constitutionality of any act of Congress "affecting the public interest" is drawn in question, the court shall certify the fact to the Attorney General, and the court shall permit the United States "to intervene" with all the rights of a party to the extent necessary for a proper presentation of the facts and the law relating to the question of constitutionality. 8 In two instances the government's motion to dismiss the case was granted on the ground the suit was collusive and not adversary in character, 9 or did not involve a justiciable case or controversy. 10 T h e direct representation of the government is plainly important in these cases affecting the public interest. T h e second situation is that of the abuse of power by those in control of government. A vivid illustration is the contemporary controversy over legislative reapportionment, with the state legislatures refusing to comply with the duty to reapportion imposed upon them by the state constitutions and their oaths of office. T h e state courts for the most part have refused to intervene. A n illustration is the decision by the Supreme Court of Tennessee that "the courts have no power to compel either the legislative or the executive department to perform the duties committed exclusively to their respective domains by the fundamental law [of the s t a t e ] . " 1 1 A n attack was pressed, however, through appeal to an even more fundamental law, the Constitution of the United States. It is well to take note of the nature of this decisive action, the parties to it, and their legal representatives. T h e action was brought in a federal court under the sections on vindication of " U . S. C . A . tir. 28, § 403. ' U n i t e d States v. Johnson, 3 1 9 U.S. 302 ( 1 9 4 3 ) . I0 C o f f m a n v. Breeze Corporations, Inc., 323 U . S . 3 1 6 ( 1 9 4 5 ) . 31 K i d d v. McCanless, 200 Tenn. 2 7 3 , 277 ( 1 9 5 6 ) , appeal dismissed, Kidd v. McCanless, 3 5 2 U.S. 920 ( 1 9 5 6 ) .

110

THE PUBLIC

INTEREST

rights in the Civil Rights chapter of the United States Code. 12 It was brought by private citizens of the state of Tennessee who were joined by two of the largest cities of the state as intervening plaintiffs. The defendants were officials of the state, and they were represented by the law officers of the state. When the attack failed in the District C o u r t 1 3 and an appeal was taken to the Supreme Court, the Solicitor General of the United States joined in the argument as amicus curiae by special leave of the Court and supported the appeal. We know the decision in general 1 4 that the alleged "denial of equal protection presents a justiciable cause of action" and "the right asserted is within the reach of judicial protection"; though because of the limited scope of the decision, the three concurring opinions, and the two dissenting opinions, we are uncertain as to its precise application in the fifty different situations that may arise. Our uncertainty as to its application does not diminish the importance of the case for the purposes of this inquiry. T h e case shows in concrete form three methods of representing and protecting the public interest. One is appearance of private citizens through privately retained counsel to protect their rights as members of the public. 16 A second is intervention of a municipality within a state by its attorney to attack the injustice done its citizens by the state which created it. T h e third is the appearance of the law officer of the United States, in this case as amicus curiae, to protect the rights of the public against infringement by a state. The position of the law officers of the state of Tennessee, which u . S. C. A . § 1983, 1988. " B a k e r v. Carr, 179 F. Supp. 824 ( 1 9 5 9 ) . 14 Baker v. Carr, 369 U.S. 186 ( 1 9 6 2 ) . " Sec laffe, Standing to Secure Judicial Rei iew: Public Actions, 74 HARV. L . REV. 1265 ( 1 9 6 1 ) . " 4 2

THE PUBLIC

INTEREST

in

was charged with committing the injustice to the citizens, was a difficult one. Ordinarily it is these officers w h o have the duty of protecting the public and of enforcing the laws with the Constitution of the United States as the fundamental authority. But the question here was whether the Constitution of the United States was enforceable by the courts and so would override the state system of representation. In the earlier state case mentioned above there was the similar question of whether the courts of Tennessee had the power to compel the legislature to make the reapportionment directed by the state constitution. In the cases in both the federal and state courts, the law officers of the state supported the existing state statutes. Obviously the controversy was between city and rural forces. A f t e r the decision by the Supreme Court of the United States the governor of the state said that the state should remove itself from the reapportionment suit and let the contending forces fight it out. " N o w , " he said, " w e must see what's good for the people." T h e attorney general of the state took a different view as to his duty: " A s attorney general, I am obliged to defend the 1901 law. It is the only law w e have under which a new legislature can be elected."

18

H e may have been right as to his official duty, but his

position makes clear that in upholding the public interest or in protecting those out of power from those in power we cannot rely exclusively on the law officers of the state. T h e y may take the view that their duty is to the system as it is established and not to those treated unfairly and illegally by the system. T h e area of racial discrimination has furnished, unfortunately, more bitter and longer lasting illustrations of the abuse of power by those in control of the state and municipal governments. In " T h e Nashville Tennesseean, March 30, 1 9 6 2 , p. 1 .

112

THE PUBLIC

INTEREST

this area it is enough for my purposes to indicate the variety of legal sanctions available to correct the abuses, specifically those made available by the Civil Rights chapter of the United States Code. 17 T h e private parties aggrieved may bring suit for damages, or for specific enforcement of their rights. T h e Attorney General of the United States may proceed under criminal statutes or, when voting rights are denied, he may institute proceedings for preventive relief. Behind these procedures is the executive power recently exercised by the President through the armed forces to enforce compliance with legally determined rights. There is the milder method of an administrative commission which is directed to investigate deprivations of the right to vote, to study legal developments, to appraise federal laws and policies, and to report on these matters. T h e discussion of injustices done by holders of official power naturally brings to mind other instances of unjust or unwise action. I will follow that line of thought and digress for a minute to mention two instances. T h e growth in recent years of the service state and of government activities has brought numerous complaints of injustices done by officials. This has led to increasing interest in measures to protect the individual citizen and to prevent the recurrence of official injustice. Methods for official control employed in European countries have drawn special attention. 18 Closer to my subject are two decisions at this term of the Supreme Court of the United States in which the Court explicitly U. s. c. A. tit. 42, ch. 2 1 . For a discussion of methods employed in Scandinavian countries, see Davis, Ombudsman in America: Officer to Criticize Administrative Action, 109 U. PA. L. REV. 1057 ( 1 9 6 1 ) ; Jagerskiold, The Swedish Ombudsman, supra at 1077; Christensen, The Danish Ombudsman, supra at 1 1 0 0 . 17

18

THE

PUBLIC

INTEREST

"3

employed the "public interest" as a guide. One case already discussed is National Association for the Advancement of Colored People v. Button, involving the regulation of the legal profession. 19 The opinion of the Court, which barred the application of a statute condemning the activities of the Association, distinguished other regulations of the profession "which reflect hostility to stirring up litigation . . . serving no public interest." (Emphasis added.) The second case concerned one of the seemingly most private of matters, a controversy between parents over the custody of their children. While a suit for custody was pending in Virginia, the parents reached an agreement which gave custody to the father most of each year. The Virginia court then entered an order that since the parties had agreed on custody the case be dismissed. About a year later the mother, who had moved to South Carolina, there filed a second suit for custody of the children. The father in his answer relied on the Virginia agreement and the consequent decree of that court, and the Supreme Court of South Carolina felt it was bound by the full faith and credit clause of the Constitution of the United States to uphold the Virginia decree. T h e Supreme Court of the United States reversed the state court and held the second state was not precluded "from determining the best interest of these children." 20 It distinguished earlier cases which treated agreed dismissal as res judicata for they "involved purely private controversies which private litigants can settle, and none involved the custody of children where the public interest is strong." (Emphasis added.) Continuing, the Court, through Mr. Justice Black, stressed the difference between the effect of the " 3 7 1 U.S. 4 1 5 ( 1 9 6 3 ) . " F o r d v. Ford, 3 7 1 U.S. 1 8 7

(1962).

114

THE

PUBLIC

INTEREST

agreement on the parties to it and its effect on third parties, here the children: "The [Virginia] court's order meant no more than that the parents had made an agreement between themselves. . . . Unfortunately, experience has shown that the question of custody, so vital to a child's happiness and well-being, frequently cannot be left to the discretion of parents." My immediate subject is concerned with needed representation of group interest rather than of individuals. So I turn to the third and last of the group-interest situations to be discussed. In the consideration of power, its location, abuse, and control, we have so far given principal attention to government. Let us look now at the centers of power in our economy. Here there are several changes of emphasis to be noted. First, the holders of power are not the governments, which are controlled by the bills of rights, but private persons that have claimed and again may claim the protection of the bills of rights against interference by government. Second, the power possessed by the individuals is exercised on behalf of groups, like management speaking for industry or labor leaders representing unions and their members. Third, the power is exercised through economic arrangements made in private between the parties and not at all in public through court proceedings. The pioneer study of Berle and Means made manifest the concentration of industrial power in a few hands. 21 Professor Berle has gone on to urge that the large corporate centers of power are essentially political organizations and as such may be subject to the political restraints of the Constitution. Dean Pound expressed the increasing dependence of individuals on their group position in a phrase, the New Feudalism, with the trend Sir Henry Maine 21

B E R L E & M E A N S , T H E M O D E R N CORPORATION AND P R I V A T E P R O P E R T Y

(1932).

THE PUBLIC

INTEREST

115

mentioned reversed and the movement now from contract back to status. 22 T o give the public protection against economic power of management in industry there were initiated within two years of each other two well-known examples of government intervention in the public interest. One was the Interstate Commission Act of 1888 which employed the commission method of regulation. T h e other was the Sherman L a w of 1890 with its prohibition of vaguely defined monopolistic acts. Each of these methods, as w e know, has been widely extended. In aid of another group which is a part of industry at work, support has been given to organized labor so as to strengthen its power in dealing with management. With the concentration of power in groups there have come legal safeguards of members of the groups against their leaders, e.g., of stockholders against management, of labor union members against their officers, and of the investing public against misrepresentations in issuing or dealing in securities. In a leading case the Supreme Court of the United States stressed the analogy here mentioned between the power of government and the power of a group given to it by law over its members. 23 A federal statute made a labor union the bargaining representative of a class of railway employees. T h e union was accused of exercising its power in a way that discriminated against its N e g r o members. T h e court held the union had the duty to represent its members without discrimination, stating: "Congress has seen fit to clothe the bargaining representative with powers comparable to those possessed by a legislative body both to create and a a

P o u n d , The New Feudalism, 16 A.B.A.J. ( 1 9 3 0 ) . Steele v. Louisville ic Nashville R. R. Co. 323 U.S. 192, 202

(1944).

n6

THE PUBLIC

INTEREST

to restrict the rights of those whom it represents . . . but it has also imposed on the representative a corresponding duty." Justice Murphy in a concurring opinion would have put the decision on constitutional grounds: "While such a union is essentially a private organization, its power to represent and bind all members of a class or craft is derived solely from Congress. . . . T h e Constitution voices its disapproval whenever economic discrimination is applied under authority of law against any race, creed or color." Many writers, too, have noted the essentially legislative nature of the power of groups over their members. W h a t is not so readily admitted is that the law made by groups for their members becomes law for the general public as well. 24 W h e n cartels or trusts in this country fix prices for their members, they fix them for the public, too. When labor unions fix wages for their members, they fix them as an element in the charge for the product which the public will bear. When management and labor agree on wages and benefits, they set costs that are passed on to the public in the form of prices. A s higher prices bring increased difficulties in competition with other goods or with other countries, management may seek to cut labor costs by cutting down on employment through automation. Labor may fight back and seek to maintain jobs and costs by demands for feather-bedding or a shorter day with equal pay. If costs are reduced by more efficient production and employees are discharged, this brings unemployment with the obvious result of support of the unemployed at public expense and less obvious attendant hardships on the individuals. It is now manifest to all, save those who are blind because they M

For a discussion of group control in the context of social change, see FRIED-

M A V N , L A W IK A CHANGINC SOCIETY c h s . 9 a n d

10

R I G H T S , T H E CONSTITUTION IN A C T I O N c h . I X

(I960).

(1959);

GFIXHORN,

AMERICAN

THE

PUBLIC

INTEREST

117

w i l l not see, that the public interest is deeply involved in w h a t w e r e long thought of as private matters to be left to private determination. A s Justice Jackson said in another context w e are at a stage w h i c h "is one to disturb self-confidence," in confronting " t h e pattern of liberal government in the eighteenth century" w i t h the problems of the twentieth century: These principles [of the Bill of Rights] grew in soil which also produced a philosophy that the individual was the center of society, that his liberty was attainable through mere absence of governmental restraints, and that government should be entrusted with f e w controls and only the mildest supervision over men's affairs. W e must transplant these rights to a soil in which the laissez-faire concept or principle of non-interference has withered at least as to economic affairs, and social advancements are increasingly sought through closer integration of society and through expanded and strengthened governmental controls. 25 I n this brief discussion w e have come a long w a y f r o m the situation w i t h w h i c h these lectures began—a controversy between individuals or between an individual and government with the need f o r representation of the individual if justice is to be done. W e h a v e touched and barely opened a f a r larger and more difficult situation created by modern conditions, under which groups dominate the economy. T h e decisions of the leaders of each g r o u p will determine the interests of the members. In controversies between groups the decision reached by fight or agreement will be the l a w f o r their members and for the public as well. Y e t there is some similarity in the measures taken f o r representation in the two fields of the individual's interest and the public interest. T h e r e was f o r a long time obliviousness to the need of the individual, " W e s t Virginia Board o£ Education v. Barnette, 3 1 9 U . S . 624, 639-40

(1943).

II8

THE PUBLIC

INTEREST

then realization of it with a large measure of satisfaction, but some gaps remain. In the area of the public interest, too, there was seeming obliviousness of its existence except when the government was a party. T h e n there came increasing recognition of the public interest, but much more serious gaps in its representation still exist. There is need, I submit, for representation of the public interest in the process by which these decisions are made and the public interest is affected. T h e representation may be by lawyers and by fellow experts in other disciplines, as mentioned in Chapter 5. T h e proposal may at first seem strange, since it calls for public presence in which w e are loath to think of as other than private matters. Y e t the proposal rests on two accepted principles. One principle is that all social power over others, whether it be political or economic, calls for some measure of control. A s to political power, the principle is a truism. It is exemplified by our system of checks and balances and by the provisions of the Bill of Rights that protect the individual against government. A s to economic power, it has long been so when the power is monopolistic, as illustrated by old common law rules and by modern statutes. W h e n large units of industry control parts of the economy, the same principle is extended to the power labeled oligopoly. There is no less reason for control when there is dualistic power through the concert of management and labor. Whether it be mono-, duo-, or oligo- power, the need for protection and the principle extending the protection are the same. T h e second principle is that persons affected by a decision are entitled to a fair hearing in the making of the decision, and fair hearing includes representation. A s to political power the principle is manifest. F o r legislative bodies an illustration f r o m our earliest

THE PUBLIC

INTEREST

119

national history is the revolutionary cry of the colonials: " N o taxation without representation." A current illustration of the principle that the legislative representation be fair is the reapportionment requirement. When power is exercised by a judicial body, the right to a fair hearing is taken f o r granted. These lectures rest on the existence of this right. Beginning with the unquestioned right they have urged provision for what is a part of a fair hearing—representation by counsel. A n illustration of the right to a hearing and representation by counsel is a case concerning an asserted class action. A long controversy involving restrictive covenants affecting some 500 landowners went to the Supreme Court of Illinois twice. In the first case the court upheld the validity of the covenants. In the second case, when persons who were not parties to the first action attacked the covenants, the state court held the decision in the first case made the matter res judicata, as the first proceeding was a class action. T h e Supreme Court of the United States reversed the second state court decision on the ground the parties involved in the second case were not represented in the first action and to hold them bound by the decision in that action was a denial of due process of law. 2 " T h e opinion stressed the requirement that "the procedure adopted, fairly insures the protection of the interests of absent parties who are to be bound by it." Applying the requirement to the particular case it continued: "Such a selection of representatives for purposes of litigation, whose substantial interests are not necessarily or even probably the same as those whom they are deemed to represent, does not afford that protection to absent parties which due process requires." These two enduring principles, on the necessity for the control " H n n s b e r r y v. Lee, 3 1 1

U.S. 3 2 , 42, 45

(1940).

THE PUBLIC

120

INTEREST

of power and the requirement of representation, apply to economic power in the new form of big business and big labor exercising dualistic power over the public economy. T h e view that private economic power may m a k e necessary further protection against its misuse is not new to this gathering. L e g a l Control of E c o n o m i c Power was a subject of the Postgraduate Conference of the Columbia L a w School four years ago. A t the Conference Professor Berle stressed the importance that our great industrial machine be kept running. Professor Cary added the comment that the challenge of the international situation is an added factor to "force this inchoate law (shall we call it governmental intervention) forward at an accelerated p a c e . " 2 7 W e have had the imaginativeness and resourcefulness to meet new political and economic situations with new measures. T h e measure here proposed is the limited one of representation of the public interest in the process by which the two contending powers m a k e their decision on an important element of the cost of the product to the public. T h e mere presence of the public representative may bring about what Professor Reinhold Niebuhr, in speaking of the spiritual attainments of Lincoln, called an awareness of another dimension of meaning and j u d g m e n t . W i t h the other dimension made visible through the presence of the public representative and with the showing of the public effects of the controversy and of the proposals by the parties, it should be far easier to achieve settlements that are fair to the three sides affected—labor, management, and the public. E v e n this limited measure of public interposition will meet opposition. Every holder of power hates constraint or even inquiry 27 Berle, Legal (i960).

Problems

of Economic

Power,

60

COLUM.

L.

REV.

4, 1 1 ,

15

THE PUBLIC

INTEREST

121

into its use. If it is urged that this is needed in the public interest, he may repeat the words of a leader of industry a century ago, " T h e public be damned," or the comment of a rural legislator in a discussion of legislative reapportionment: " W e have the power and we intend to keep it." T h e position of the representatives of the contending parties in management-labor controversy makes some form of public participation peculiarly important. T h e s e representatives are essentially politicians in that they gain and hold their positions through the suffrage of others. Yet these private economic politicians are unlike the ordinary public political politicians. Political politicians represent a variety of interests in their districts, and they may have to consult and coordinate these interests in seeking election and reelection. At the least the varied interests of the electorate are represented and coordinated when issues are argued and decisions reached in representative assemblies. But the economic politicians, whether representative of management or of labor, represent a single interest and not a cross section of the public. O n e side presses for more profits, the other for more wages. Neither side is concerned with lower costs except as they may bear on profits or wages. T h e representative who falters in pressing the interests of his side is threatened by aspirants for his office w h o promise more—more effective representation and more profits or more wages. The

representatives

of

private

groups

will

make

the

old

constitutional plea of liberty of contract as a bar to public representation

in their conference and agreement. T h e

little case

described above over the custody of children is a recent reminder that even in the most private and individual of matters an agreement may not stand if it affects the public interest and if there

THE

122

PUBLIC

INTEREST

has been no public representation in the process of reaching it. The advocate of a group may support his one-sided representation by quoting from our profession the rolling periods of Lord Brougham in his defense of Queen Caroline before the House of Lords: " [ A ] n advocate, by the sacred duty which he owes his client, knows in the discharge of that office but one person in the world, that client and none other. . . . and he must not regard the alarm, the suffering, the torment, the destruction which he may bring upon any other." 28 Yet the passage, even if it were true, reveals the need of correctives. Lord Brougham was faced by opposing advocates and was before a tribunal which could represent the public interest. Far more troubling than the inevitable opposition by the holders of power is the objection that interposition on behalf of the public is a threat to the free enterprise system which has given us abundance and has opened opportunity for self-development throughout most of our society. One of my Wall Street friends put the objection colloquially in the early days of the New Deal: "The competitive system is a hell of a system and it just won't work if you try to take all the hell out of it." The obvious reply is that the system just won't work if you leave all the hell in it. We are back to where we began this discussion, at the paradoxes which continually confront law—freedom and order, justice and liberty. We seek what is described in the title of Professor Robert Hale's well-known book Freedom Through Law. On the exact point of reconciliation of the antinomies there can be no prescription. On the need for new methods of reconciliation there may be guidance by analogy from the often-quoted note "See

FORSYTHE, HORTENSIUS

389 (3d ed. 1879).

THE

PUBLIC

INTEREST

123

in the Carolene Products Co. case in which Justice Stone indicated that there should be "more exacting judicial scrutiny" of legislation "which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation." 29 When in our economy the nominally private but essentially public processes of bargaining and decision cannot ordinarily be expected to repeal or prevent measures seriously harmful to the public interests, then in these processes there is need for a lawyer or other representative of the public. This limited measure is the minimum the public interest requires. It may forestall the necessity of other and more stringent methods of protection. When several interests must continue to work together, conciliation rather than decision is the wise method of adjustment, as it achieves peace without defeat. And good lawyers are good conciliators. " U n i t e d States v. Carolene Products Co., 301 U.S. 144, 1 5 2 ( 1 9 3 8 ) .

INDEX Abrahams, Robert D., 72-73 Ades, In re, 15-16, 31 Adversary system, 4-5, 26 Allison, Junius L., 11 American Bar Association, committees, 17-18, 41, 46, 61, 65, 71, 78-79, 9599 Assignment of counsel: in unpopular cases, 15; in general, 43-49 Association, right of, 85 Baker v. Carr, 110 Beaney, William, 11 Berle, Adolph, 2, 114, 120 Betts v. Brady, 11 Black, Hugo, 10, 35, 113-14 Bonsai, Dudley B., 22 Bragg, Lawrence, 87-88 Brandeis, Louis D., 104, 108 Brennan, William J., Jr., 85 Brotherhood of Railroad Trainmen v. Virginia, 86 Brownell, Emery, 40, 42, 47 Bryce, Lord, 108 California State Bar, 73-74 Cammer v. United States, 51 Cantrall, Arch, 96 Cardozo, Benjamin N., 4, 83 Carolene Products Co. case, 123 Carrington, Paul, 82

Cary, William L., 120 Celler, Emanuel, 53 Chafee, Zechariah, 23 Chessman, Caryl, 27-28 Choate, Joseph, 5 Choate, Rufus, 88 Clark, Charles, 60, 66 Cockshutt, H. J. B., 65 Code Napoleon, 105-6 Columbia Law School, 100-1, 120 Communist: as lawyer, 16, 3 1 ; as defendant, 26-27, 31 Corstvet, Emma, 60, 66 Countryman, Vern, 18 Covington, Robert, xi, 91 Cox, Archibald, 106 Cummings, Homer S., 10 Currie, Brainerd, 100-r Delays, in prosecution of crime, 25-29 Dimock, E. J., 52-54 District of Columbia, Commission on Legal Aid, 41 Dowling, Noel, 35 England: control of trial by judge, 5, 32; solicitor and barrister, 39; legal aid, 45-48, 56-57 Erskine, Lord, 19-20 Evershed, Lord, 3, 52

INDEX

126 Fair trial, 13-15 Florida Bar, In the Matter of, 71 Frankfurter, Felix, 36-37 Friedmann, W., 1 1 5 Garrison, Lloyd, 60, 66 Gellhorn, Walter, 44, 116 Generalist, 91, 99-100 General Motors, 104 Gideon v. Wainwright, 11 Goble, George, 107 Group legal services, 70, 112-13 Gunnels v. Atlanta Bar Association, 16 Hale, Robert L., 122 Hamilton, Andrew, 14 Hand, Learned, 31, 39, 40 Harlan, John M., 85, 86 Hated, the: difficulty in fair trial, 13-15; judge's part in trial, 15-17; organized bar, 17-18; individual lawyer, 18-21; public effects of representation of, 21-27, political cases, 28-35; order versus freedom, 34-37 Haydock, Richard, 82 Hickman v. Taylor, 5, 63 Hildebrand v. State Bar, 76-77 Historical Trials (Macdonell), 1314. 37-38 Holme, Peter, 8 Holmes, Oliver Wendell, 34, 35 Hughes, Charles Evans, 23, 41 International Commission of Jurists: rule of law, 7; Chessman case, 27-28

Jackson, Robert H., 5, 26, 63, 1 1 7 Johnson v. Zerbst, 9-10, 42 Joiner, Charles, 97 Jowitt, Lord, 5 Judiciary, Committee on (hearings), 53-55 Kamisar, Yale, 1 1 Kidd v. McCanless, 109 Kircheimer, Otto, 39 Kunstler, William M., 27 Lauer, Louis, 44 Law, rule of, 7 Law Society, 45-48 Lawyer referral service, 47-48, 67-69 Legal aid, 40-44, 54-55 Legal education, 100-1 Legislative committees, 33 Levy, Beryl H., 90 Lewis, Walker, 14 Lincoln, Abraham, 35-36, 120 Llewellyn, Karl, 66 Lund, Thomas, 48 McCracken, Robert, 73, 102 Macdonell, John, 2-3, 37-38 Maguire, John M., 55 Malesherbes, Chretien, 14 Marsh, Norman, 7, 49 Master of the Rolls, 3, 52 Matthews, E. J. T., 45-48, 68 Maxwell, David F., 96 Means, Gardiner C., 1 1 4 Medical profession: concern with services, 2-3; contrast with legal, 61-62; specialization, 94-95, 97 Medina, Harold, 19, 21 Middle classes, the: characteristic of

INDEX United States, 59; increase, 59-60; shortage of legal services, 60-61; defined, 61-62; contrast in services of medicine and law, 62-63; reasons for lack of legal services, 62-65; American Bar Association's consideration, 66-68; lawyer referral services, 68-69; professional standards, 70-71; neighborhood law office, 71-73; groups of laymen to obtain legal services, 73-79; need for renewed consideration, 79-84; constitutional protection of nonprofit groups, 84-86 Millar, Robert, 5 Miller, John S., 96 Mills, C. Wright, 69 More, Sir Thomas, 87 Murphy, Frank, 116 NAACP v. Button, 17, 84-85, 1 1 2 - 1 3 NAACP v. Patty, 16 National Lawyers' Guild, 72 National Legal Aid and Defender Association, 42 Need for a lawyer: professions' concern with production rather than distribution, 1-3; paradoxical nature of lawyer's services, 3-6; wider responsibilities of lawyers, 6-7; essential to rule of law, 7-8; legal right to counsel, 8-11 Neighborhood law office, 71-73 New York, Association of Bar of City, 22-23, 4 J > 5 1 New York Legal Aid Society, 55-56, 60 Niebuhr, Reinhold, 120 Niles, Russell, 94

127 Odger, W. Blake, 32 Office work, extent of, 5-6, 39 Ombudsman, 1 1 2 Osier, William, 103 Paine, Tom, 19, 20 Paradoxes of legal science, 4 Paradoxes of legal services, 3-5 Patterson, Edwin W., 24 Philadelphia Bar Association, 72-73 Poor, the: need for lawyers, 39-40; aid by bar leaders, 40-41; private legal aid, 41-43; public legal aid, 43-44; English system of legal aid, 45-48; mixed system, 48-49; ideals of government, 49; need for independent lawyer, 51-52; public defender, 53-55; English and American systems compared, 55-58 Pound, Roscoe, 114-15 Powell v. Alabama, 8-9, 42 Public defender, 43-44, 52-55 Public interest: striving for private interest, 104-6; control of private striving, 106-8; governmental power, 108-9; official power, 10914; economic power, 114-18; need for public representative, 118-23 Racial discrimination, m - 1 2 Roosevelt, Theodore, 23-24 Root, Elihu, 46 Rostow, Eugene, 18 Russell Sage Foundation, 56 Sacher, Harry, 26-27 Sacco-Vanzetti case, 34 Scottsboro case, see Powell v. Alabama

INDEX

128 Servicemen, legal aid for, 44 Seymour, Whitney, 17-18 Shientag, Bernard, 92 Sixth Amendment, 9-10 Smith, Reginald Heber, 40, 63, 71-72 Socialization, 51 Soper, Morris, 16, 31 Southeastern conference, 89 Spano v. New York, 1 1 , 25 Specialized legal services: development of knowledge, 87-90; need for generalist and specialist, 90-93; analogies of English lawyers and of physicians, 94-95; clients' need, 96-97; specialist, 97-99; generalist, 99-100; social science and legal education, 100-1; social scientists as practitioners, 101-3 Stephens, Alexander, 35-36 Stewart, Potter, 58 Stone, Harlan, 115-16, 119, 123 Stone, Julius, 18

Subversives, provision of counsel, 18 Sutherland, George, 8-9 T a f t , William Howard, 40 Tennessee, 109-11 Traynor, Roger, 77-78, 80-81 Trevelyan, G. M., 16, 87-88 Tweed, Harrison, 34, 60, 92-93 Unauthorized practice of law, 69-70,

75-77. 78-79 United Nations, 50 Uveges v. Pennsylvania, 10 Warren, Earl, 25 Warren, William, x Winters, Glenn, 65 Workmen's compensation, 44 Zenger, Peter, 14 Zimmern, Alfred, 107-8