NAACP v. Harrison Brief and Appendix for Appellees

    IN  T H E

Supreme Court of Appeals 
of Virginia

A T  R IC H M O N D

R ecord N os. 5096 and 5097

N A T IO N A L  A SSO C IA T IO N  FO R  T H E  A D V A N C E ­
M E N T  O F C O LO R ED  P E O P L E , ET C .

v.
A. S. H A R R ISO N , JR ., A T T O R N E Y  G E N E R A L  

O F V IR G IN IA , E T  A L.

N .A.A .C.P. L E G A L  D E F E N S E  A N D  E D U ­
C A T IO N A L  F U N D , INC.

v.
A. S. H A R R ISO N , JR ., A T T O R N E Y  G E N E R A L  

O F V IR G IN IA , E T  A L .

BRIEF AND APPENDIX FOR APPELLEES

J ohn  W. K now les
Assistant Attorney General 
Supreme Court Building 
Richmond, Virginia

Counsel

D avid J. M ays 
H en ry  T. W ic k h a m  

State-Planters Bank Bldg. 
Richmond, Virginia

Appellees

Dated: March 10, 1960



TABLE OF CONTENTS

P r elim in a r y  S ta t em en t  .....................................................................   1

S t a t em en t  of t h e  C a s e .....................................................   2

T h e  S tatutes I n v o lv ed ................ ........................................ - .......... 3

T h e  Q u estio n s  P r e s e n t e d ........................................................... 4

S t a t em en t  of t h e  F a c t s ............................................................. 4

A r g u m e n t ...................................................................................................  28

I. Certain Activities of the Plaintiffs Are Prohibited by 
Chapter 33 ............................................................................  28

II. Chapter 36 Is Applicable to Some of the Activities of 
the Plaintiffs ........................................................................  35

III. Freedom of Speech and Chapters 33 and 3 6 ................... 39

IV. Equal Protection and Chapter 3 6 ....................................  48

C onclusio n  ............................................. -......................................  51

Page

A ppen dix  :

I. Chapter 33, Acts of the General Assembly..........  App. 1

II. Chapter 36, Acts of the General Assembly...........  App. 5

III. Defendants’ Exhibit D-3, Statement of Legal Fees
and Expenses Paid by Virginia State Conference.. App. 12

IV. Summary of Testimony of Plaintiffs in School
Segregation C ases....................................................  App. 14



Cases
Page

Atchison, Topeka & Santa Fe Railway Co. v. Jackson, 235 F.
2d 390............................................. - ...........................................  47

Bigelow v. Old Dominion Copper, 74 N. J. Eq. 457 ...................  42

Board of Supervisors v. Boaz, 176 Va. 126..................................  37

Brannon v. Stark, 185 F. 2d 871....................................................  42

Commonwealth v. Mason, 175 Pa. Supp. 576 ..............................  37

Dorghty v. Grills, 37 Tenn. App. 6 3 ..............................................  47

Gates & Sons Co. v. Richmond, 103 Va. 702 ................................ 37

Hilebrand v. State Bar of California, 225 P. 2d 508 .................. 47

Hughes v. Superior Court of California, 339 U. S. 460 .............  49

In Re Brotherhood of Railroad Trainmen, 131 111. 2d 391 .......  47

International Brotherhood v. NLRB, 431 U. S. 694 .................... 37

LaPage v. United States, 146 F. 2d 536 ...................................... 37

McCloskey v. Tobin, 252 U. S. 107..............................................  43

M’lntyre v. Thompson, 10 F. 531..................................................  36

N.A.A.C.P. v. Committee, 199 Va. 665 ........................................  50

National Ass’n. for Advancement of Colored People v. Patty,
159 F. Supp. 503 ......................................................................... 5

Nichols v. Bunting, 3 Hawks (N. C.) 8 6 ......................................  36

People v. Drake (Cal., 1957), 310 P. 2d 977 ............................... 37

People ex rel Chicago Bar Assn. v. Chicago Motor Club, 362 111.
50 .................................................................................................  45

People ex rel Courtney v. Assn, of Real Estate Taxpayers, 4 111.
102 ...............................................................................................  46

Railroad Express Agency v. New York, 336 U. S. 106.............  50

TABLE OF CITATIONS



Page

Re Maclub of America, Inc. (M ass.), 3 N. E. 2d 272 ................ 44

Richmond Ass’n. of Credit Men v. Bar Association, 167 Va.
327 ................................................................................. 28, 29, 30

Sweezy v. New Hampshire, 354 U. S. 234 ..................................  39

Thomas v. Collins, 323 U. S. 516 .................................................. 40

Thursten v. Percival, 18 Mass. (1 Pick.) 4 1 5 ............................ 36

Tiller v. Commonwealth, 193 Va. 4 1 8 ..........................................  37

United States v. Carolene Products Co., 304 U. S. 144.............  49

United States v. Petrillo, 332 U. S. 1 ............................................  50

Vitaphone Corp. v. Hutchison, 28 F. Supp. 526 .......................... 42

Watkins v. United States, 354 U. S. 178...................................... 39

Wickham v. Conklin, 8 Johns (N. Y.) 220 .................................. 36

Williamson v. Lee Optical Company of Oklahoma, 348 U. S.
483 ...............................................................................................  48

Statutes

Acts of the General Assembly, Extra Session, 1956:
Chapter 33 ....................................................  2, 3, 4, 15, 28, 33

34, 39, 41, 51

Chapter 36 ......................................  2, 3, 4, 15, 35, 36, 37, 39
41, 44, 48, 50, 51

Code of Virginia:
Section 54-74 ........ ................................................................ 3, 33
Section 54-78 ................................................................. 3, 33, 34
Section 54-79 ..................................................................  3, 4, 34
Section 1-10 ...............................................................................  35
Section 54-42 .............................................................................  28
Section 54-44 .............................................................................  28



Constitution of the United States:
Fourteenth Amendment ....................................................  41, 48

Other Authorities

53 A. L. R ...........................................................................................  43

121 A. L. R .........................................................................................  44

Blackstone’s Commentaries, Book 4 ..............................................  36

Canons of Professional Ethics:
Canon 35 .....................................................................................  32
Canon 47 .....................................................................................  31

Restatement of Torts, Section 766 ................................................  38

Virginia State B a r :
Committee on Legal Ethics

Opinion No. 10 ............................................................  32, 40
Opinion No. 41 ....................................................................  33
Opinion No. 4 3 ..................................................................... 33
Opinion No. 45 ..................................................................  33

Committee on Unauthorized Practice of Law
Opinion No. 3 0 ..................................................................... 42

Ninth Annual Report, p. 3 7 ......................................................  31

Ninth Annual Report, p. 3 9 ......................................................  31

Seventeenth Annual Report, p. 3 2 ..........................................  31

Page

Webster’s New International Dictionary (2d ed., unabridged) .. 37



IN  T H E

Supreme Court of Appeals of Virginia
A T  R IC H M O N D

R ecord N os. 5096 and 5097

N A T IO N A L  A SSO C IA T IO N  FO R  T H E  A D V A N C E ­
M E N T  O F C O LO R ED  P E O P L E , ETC .

v.
A. S. H A R R ISO N , JR ., A T T O R N E Y  G E N E R A L  

O F V IR G IN IA , E T  A L.

N .A .A .C.P. L E G A L  D E F E N S E  A N D  E D U ­
C A T IO N A L F U N D , INC.

v.
A. S. H A R R ISO N , JR ., A T T O R N E Y  G E N E R A L  

O F V IR G IN IA , E T  A L.

BRIEF ON BEHALF OF APPELLEES

PRELIMINARY STATEMENT

These cases were heard together by the court below 
though the appellants, hereinafter referred to as plain­
tiffs, have filed separate briefs before this Court. The 
appellees, hereinafter referred to as defendants, respect­
fully request that this brief be considered in opposition to 
both briefs of the plaintiffs.



2

The National Association for the Advancement of 
Colored People, hereinafter referred to as N .A.A.C.P., 
and the N.A. A.C.P. Legal Defense and Educational Fund, 
Inc., hereinafter referred to as Legal Defense Fund or 
Fund, are New York corporations registered with the 
State Corporation Commission to do business in this 
State. In the court below, they sought a declaratory 
judgment concerning Chapters 33 and 36, Acts of Assem­
bly, E xtra Session, 1956 (§§54-74, 54-78, 54-79 and 
§§18-349.31 to 18-349.37, inclusive, of the Code of V ir­
ginia, as amended).

Both the N .A.A.C.P. and the Legal Defense Fund 
contended in the court below that Chapters 33 and 36 
should not be construed to apply to them, or those associ­
ated with them, because such a construction would deny 
them, and those associated with them, due process of law 
and the equal protection of the law secured by the Four­
teenth Amendment of the Constitution of the United 
States.

The essence of the contention of the plaintiffs is that 
the statutes in question are unconstitutional only if con­
strued to apply to them. In other words, when the statutes 
are applied to others they are constitutional and “ serve 
useful ends” (B rie f of Fund, pp. 33 and 34).

The N .A .A .C.P. not only requested the court below to 
construe Chapters 33 and 36 in light of certain constitu­
tional contentions but also contended that the statutes 
were unconstitutional if applied to its activities.

On February 25, 1959, the Circuit Court o f the City 
of Richmond entered its final order. There, it was held

STATEMENT OF THE CASE



3

that certain activities of the plaintiffs were not within 
the purview of Chapters 33 and 36 while certain other 
enumerated activities, when conducted in the manner 
shown by the evidence in these cases, amounted to viola­
tions of Chapters 33 and 36.

The Circuit Court also held that the application of 
Chapters 33 and 36 to the activities o f the N .A .A .C.P. 
and those affiliated with it, did not deny it due process of 
law or equal protection of the laws in violation of the 
Fourteenth Amendment. The court made no adjudication 
on this question as to the Legal Defense Fund in view of 
its contention that its pleadings did not raise or present 
such a question for determination.

THE STATUTES INVOLVED

For the convenience of the Court, Chapters 33 and 36, 
supra, are set forth as Appendix I and Appendix II of 
this brief. They pertain to the regulation of the practice 
of the law.

Chapter 33 amends and reenacts three sections of the 
Code of Virginia, namely, §§54-74, 54-78 and 54-79. The 
amendment to §54-74 broadens the definition of “mal­
practice” to include the acceptance of employment from 
a corporation with knowledge that such corporation has 
violated a provision of Article 7, Chapter 4, Title 54, Code 
of Virginia (§§54-78 to 54-83, inclusive). Section 54-78 
broadens the definition of a “ runner” or “capper” to in­
clude any person, association or corporation acting as an 
agent for another person, association or corporation who 
or which employs an attorney in connection with any 
judicial proceeding in which such person, association or



4

corporation is not a party and has no pecuniary right or 
liability therein.

The provisions of § 54-79 make it unlawful for a per­
son, association or corporation to “ solicit any business” 
for an attorney or any other person, association or corpo­
ration.

Chapter 36 makes it unlawful for any person not having 
a direct interest in a legal proceeding to give anything of 
value “as an inducement” to any person to bring a lawsuit 
against the Commonwealth, its officers, agencies or politi­
cal subdivisions.

THE QUESTIONS PRESENTED

The following questions are presented by these cases:

1. Do the activities of the plaintiffs, or either of 
them, amount to the solicitation of business prohib­
ited by Chapter 33?

2. Do the activities of the plaintiffs, or either of 
them, amount to an inducement to others to com­
mence or further prosecute a lawsuit against the 
Commonwealth, its officers, agencies or political sub­
divisions ?

3. Do the provisions of Chapters 33 and 36 vio­
late the Fourteenth Amendment to the Constitution 
of the United States?

STATEMENT OF FACTS

At the trial of the cases, the plaintiffs filed as their 
exhibit the complaints, defendants’ motions to dismiss and 
answers, majority and dissenting opinions of the three-



5

judge federal district court and the judgment entered in 
the case of National A ss’n. fo r Advancement of Colored 
People v. Patty, 159 F. Supp. 503 (1958), together with 
the transcript of the trial proceedings and certain plain­
tiffs’ exhibits introduced therein.

The plaintiffs then rested upon the testimony of W. 
Lester Banks, Executive Secretary of the Virginia State 
Conference of the N A A C P. He testified that there was 
no difference in the operation of the N A A C P, the Con­
ference or its branches since September 1, 1956. No testi­
mony was taken on behalf of the “ Fund.”

Before setting forth the defendants’ evidence, the plain­
tiffs’ exhibits pertaining to the trial of the case of National 
A ss’n. fo r Advancement of Colored People v. Patty, su­
pra, will be reviewed in order to ascertain the organization 
of the N A A C P  and the “ Fund” and their operations.

The Organization of the NAACP

As pointed out, the N A A C P  is a non-profit corporation 
organized under the laws of New York. In the words of 
its counsel, it is a political association for those who 
oppose racial discrimination.

The Virginia State Conference is an unincorporated 
association and is a constituent unit of the N A A C P, 
being financially supported by contributions from local 
branches and the national corporation.

The local branches of the N A A C P  are unincorporated 
associations that furnish financial support to the national 
corporation. The N A A C P  exercises such “ minimal” con­
trol over its branches as is set forth in its “ Constitution 
and By-laws for Branches.”

The “ minimal control” exercised by the N A A C P  over



6

its branches is illustrated by its Constitution and By-laws 
for Branches, in part, as follows:

Article I, Section 2 —  The branch is subject to the 
general authority and jurisdiction of the board of direc­
tors o f the N A A CP.

Article II, Section 4 —  The secretary must report to 
the N A A C P all events affecting the interest of colored 
people.

Article IV, Section 7 —  The N A A C P has the power 
to intervene in all election controversies.

Article IX , Section 1 —  If  the branches fail to report 
to the N A A C P  for a period of four months the board of 
directors of the N A A C P  may declare all offices of the 
branch vacant and order a new election.

Article IX , Section 2 —  The N A A C P  may remove lo­
cal officers for gross neglect of duty or conduct contrary 
to the best interest of the N A A CP.

Article X  —  The charter of a local branch may be sus­
pended or revoked by the N A A CP.

Article X I  —  A local branch may not adopt or amend 
its by-laws without prior written approval of the N A A CP.

Roy Wilkins heads the staff of the N A A C P  which is 
responsible to the board of directors. The staff “preside 
over the functioning of the local branches throughout the 
country and the state conferences of branches” (Fed. Tr., 
p. 65). *

* “Fed. Tr., p..... ” refers to the page of the transcript of the testi­
mony taken in the trial of the case of National Ass’n. for Advance­
ment of Colored People v. Patty, supra (PI. ex. R-9).



7

Oliver W. Hill and Spottswood W. Robinson, III, are 
members of the Legal Committee of the N A A C P  as well 
as being members of the Legal Committee of the Virginia 
State Conference. Hill is also chairman of the last-men­
tioned committee and Virginia counsel for the N A A C P 
and its registered Virginia agent.

The Organization of the Legal Defense Fund

The Legal Defense Fund is a New York corporation 
organized for the following purposes as stated in its 
Certificate of Incorporation:

“ (a )  To render legal aid gratuitously to such Ne­
groes as may appear to be worthy thereof, who are 
suffering legal injustice by reason of race or color 
and unable to employ and engage legal aid and assist­
ance on account of poverty.

“ (b ) To seek and promote the educational facilities 
for Negroes who are denied the same by reason of 
race or color.
“ (c) To conduct research, collect, collate, acquire, 
compile and publish facts, information and statistics 
concerning educational facilities and educational op­
portunities for Negroes and the inequality in the edu­
cational facilities and educational opportunities pro­
vided for Negroes out of public funds; and the status 
of the Negro in American life.”

Thurgood Marshall is Director and Counsel of the 
Legal Defense Fund and it is his duty to carry out the 
policies of the board of directors. He has under his direc­
tion a legal research staff of six full-time lawyers who 
reside in New York City but who may be assigned to 
places outside of New York (Fed. Tr., p. 254).



8

In addition to the full-time staff, the Legal Defense 
Fund has lawyers in several sections of the country on a 
retainer basis and, in addition, approximately one hundred 
volunteer lawyers throughout the country that come in to 
assist whenever needed (Fed. Tr., p. 252).

Spottswood W. Robinson, III, is the Southeast Region­
al Counsel for the Legal Defense Fund on an annual re­
tainer of $6,OCX). The Southeast region includes the 
Commonwealth of Virginia.

The Legal Defense Fund also has at its disposal social 
scientists, teachers of government, anthropologists and 
sociologists, especially in school litigation (Fed. Tr., p. 
266).

There is only a small number of members of the Legal 
Defense Fund and no membership dues are required. Its 
income is derived mainly from contributors who are so­
licited by letter and telegram from New York City.

The Legal Defense Fund has been approved by the 
State of New York to operate as a legal aid society because 
of the provisions of the barratry statute of New York 
(Fed. Tr., p. 311).

The Operation of the Legal Defense Fund

Thurgood Marshall testified that it is the policy of the 
Legal Defense Fund before sending assistance in a legal 
case that the case must be referred to it by either the party 
directly in interest or the party’s attorney. When aid is 
given, the party’s attorney is controlled solely by the 
canons of ethics and “ by nothing or anybody else” (Fed. 
Tr., p. 256).

The Legal Defense Fund does not cooperate if a case 
is referred by an organization including the N A A C P



9

(Fed. Tr., p. 256). However, the lawyer who has already 
been retained by the party receiving aid from the Legal 
Defense Fund is always on the legal staff of the State 
Conference of the N A A C P (Fed. Tr., p. 271).

When a so-called client comes to a member of the legal 
staff of the State Conference, he may then receive aid, 
not only from the full legal staff of the State Conference, 
but also from the full legal staff of the Legal Defense 
Fund, including the services of its southeastern regional 
counsel (Fed. Tr., p. 277).

In the words of its Director and Counsel, the Legal 
Defense Fund operates in the following manner:

“ *  *  *  I f  the investigation conducted either from 
the New York office or through one of our local law­
yers reveals that there is discrimination because of 
race or color and legal assistance is needed, we will 
furnish that legal assistance in the form of either 
helping in payment of the costs or helping in the pay­
ment of lawyers fees, and mostly it is legal research 
in the preparation of briefs and materials of that type. 
We are getting calls all the time.” (Fed. Tr., p. 254).

Costs, expenses and investigations of legal cases on 
behalf of Negroes are borne by the Legal Defense Fund 
(Fed. Tr., p. 277a). No other organization operating in 
Virginia offers legal assistance and aid in cases involving 
discrimination against Negroes (Fed. Tr., pp. 261-262).

Spottswood W. Robinson, III, testified that his duties 
as regional counsel for the Legal Defense Fund were as 
follows:

“ To engage in research of a legal character when 
there is occasion therefor, to render service to parties



10

wlm may |ieraonttlly rc<|ucHt mo to do no to render 
service for them, to render .service to litigants upon 
the request of their attorneys, such latter services to 
he rendered along with the services that their own 
attorneys will render for them." ( h'cd. Tr., p. 34.1)

Robinson also testified in the following manner con­
cerning’ the type of case that comes within the policy of 
the Legal Defense Fund for paying attorneys’ fees and 
costs:

"A . It is my understanding that once a principle 
has been established as a matter of law, in other 
words, the legal principle has been fixed, that under 
those circumstances if it is simply a denial of a right 
of a person remedial in damages that I have a right 
to refuse to accept a person of that sort.

“ Q. If the principle has not been established, then 
the Legal Defense Fund will pay your attorney’s fees 
and will pay the costs of a suit by a private litigant 
to recover damages for violation of civil rights?

“ A. That is correct, at least, that has been done 
in the past.” (Fed. Tr., p. 347)

The testimony of Thurgood Marshall on cross-exami­
nation indicated that the Legal Defense Fund represented 
only those people who cannot afford to pay for litigation 
(Fed. Tr., p. 312). However, he stated that he knew of 
no instance in which an investigation was made to find out 
whether or not any of the plaintiffs could pay the cost of 
the school litigation in Arlington, Charlottesville, New­
port News or Norfolk (Fed. Tr., p. 314).

Marshall further admitted that if a plaintiff owned real 
estate with a fair market value of $15,000.00, free and



II

clear, lie would hr in pretty good shape to finance his own 
lawsuit ( Fed. T r .( p, 315).

Robinson stated that his duties do not require him 
to obtain a credit report or look extensively into the finan 
rial situation of the parties who may request assistance 
of the Legal Defense Fund ( Fed. Tr., p. 344). As to the 
type of investigation conducted he stated:

“ I do not make an investigation beyond the point of 
looking at the client, if the client comes into the office, 
exercising judgment as to appearances as they do 
appear, and considering those in the light of what I 
am requested to do.” (Fed. Tr., p. 344)

Robinson further testified that the Legal Defense Fund 
would represent all of the plaintiffs in a class action even 
though all but one could afford the cost of the litigation 
(Fed. Tr., pp. 355-356).

The Operation of the NAACP

Speaking of the legal activity of the N A A C P, Roy 
Wilkins testified in the federal court:

“ Well, under legal activity we have sought to assist 
in securing the constitutional rights of citizens which 
may have been impaired or infringed upon or denied. 
We have offered assistance in the securing of such 
rights. Where there has been apparently a denial of 
those rights, we have offered assistance to go to court 
and establish under the Constitution or under the 
federal laws or according to the federal processes, to 
seek the restoration of those rights to an aggrieved 
party.” (Fed. Tr., pp. 70-71)



12

Wilkins further testified that in assisting plaintiffs 
“ we would either offer them a lawyer to handle their case 
or to help to handle their case and pay that lawyer our­
selves, or we would advise them, if they had their own 
lawyer, would advise with them or assist in the costs of 
the case” (Fed. Tr., p. 82). No money ever passes directly 
to the plaintiff or litigant (Fed. Tr., p. 82).

The N A A C P does not ask a person if he wishes to chal­
lenge a law. However, it does say publicly that it believes 
that a certain law is invalid and should be challenged in 
the courts. Negroes are urged to challenge such laws and 
if one steps forward, the N A A C P  agrees to assist (Fed. 
Tr., p. 84).

Although it is not in the regular course of business, 
prepared papers have been submitted at N A A C P  meet­
ings authorizing someone to act in bringing lawsuits and 
the people in attendance have been urged to sign (Fed. 
Tr., p. 86).

Robert L. Carter, General Counsel for the N A A C P, is 
paid to handle legal affairs for the corporation. Repre­
sentation of the various Virginia plaintiffs falls within 
his duties (Fed. Tr., p. 125).

The N A A C P  offers “ legal advice and assistance and 
counsel, and Mr. Carter is one of the commodities” (Fed. 
Tr., p. 125).

Thurgood Marshall was Special Counsel for the 
N A A C P  prior to 1957 and it was his job “ to advise with 
lawyers and the people in regard to their legal rights and 
to render whatever legal assistance could be rendered” 
(Fed. Tr., p. 308).

The State Conference has a legal staff composed of



13

fifteen members and in every instance except two the 
plaintiffs have been represented by members of such staff 
in cases in which assistance is given.

All prospective plaintiffs are referred to the Chairman 
of the Legal Staff, Oliver W. Hill, and counsel for such 
plaintiffs makes his appearance when Hill has recommend­
ed that they have a “ legitimate situation that the N A A C P  
should be interested in” (Fed. Tr., p. 39).

The State Conference assists in cases involving dis­
crimination and the Executive Board formulates certain 
policies to be applied in determining whether assistance 
will be given. Hill then applies these policies and when he 
decides that the case is a proper one, it is taken “auto­
matically” with the concurrence of the President (Fed. 
Tr., p. 47).

Members of the Legal Staff of the State Conference 
may attend meetings held by the branches in their capacity 
as counsel for the Conference and either the particular 
branch or the State Conference pay the traveling expenses 
incurred (Fed. Tr., p. 59).

Oliver W. Hill testified that he is not compensated as 
chairman of the Legal Staff. It is his duty to advise 
Negroes who come to him voluntarily “or directly from 
some local branch, or after having been directed there by 
Mr. Banks” whether or not he will recommend to the 
State Conference that their case will be accepted (Fed. 
Tr., p. 131).

A fter a case is accepted, Hill selects the lawyer (Fed. 
Tr., pp. 134-135). He refers the case to a member of the 
Legal Staff residing in the particular area from which the 
complaining party came. For the Richmond area, “ one of



14

us would frequently handle the situation” (Fed. Tr., p. 
133).*

A  bill for the legal services is submitted to Hill who 
approves it with the concurrence of the President of the 
State Conference (Fed. Tr., p. 135).

Hill further stated that no investigation is made as to 
the ability of the plaintiffs to pay the cost of litigation. 
He feels that irrespective of wealth, a person has the right 
“ to get cooperative action in these cases” (Fed. Tr., p. 
156).

At the trial of these cases in the court below, W. Lester 
Banks testified on cross-examination that none of the 
school segregation cases were referred to Oliver W. Hill, 
Chairman of the Legal Committee of the State Confer­
ence, by him. In every instance the individual plaintiffs 
made contact with Hill or other members of his legal 
staff, and not through the Virginia State Conference (R. 
p. 63).

Generally, plaintiffs in the school segregation cases do 
not contribute toward expenses and legal fees though they 
are solicited and do contribute in the N A A C P ’s Freedom 
Fund (R . p. 72).

Banks, as Executive Secretary of the State Conference, 
speaks at meetings and urges citizens to look about them 
for discriminatory conditions, as do other representatives 
of the Conference. Individuals are also urged to assert 
their constitutional rights (R . p. 75).

*  It should be noted that Hill as well as Spottswood W. Robinson, 
III, also a member of the Legal Staff of the State Conference, both 
being residents of Richmond, not only represented all the plaintiffs 
as counsel of record in the Prince Edward, Arlington, Charlottes­
ville, Newport News and Norfolk school segregation cases, but took 
active and leading parts in the trial of said cases.

i



15

The chairman of the legal staff (H ill) approves every 
item of expense and all legal fees paid by the Conference. 
The president of the Conference approves the legal fees 
and expenses of Chairman Hill. Further, in every in­
stance, the president has approved the recommendations 
of the chairman (R . p. 94).

The legal staff became an official committee of the State 
Conference in 1945 or 1946 (R . p. 102). Its members are 
elected at the annual convention of the State Conference 
after being nominated by a nominating committee which, 
in turn, gets its recommendations for candidates from the 
legal staff (R . p. 103). The legal committee, in a sense, 
perpetuates itself in this manner since there has never 
been additional nominations from the floor of the Conven­
tion (R . p. 104).

Lawyers who wish to become members of the legal 
committee of the State Conference may request the presi­
dent of his local branch to recommend him to the com­
mittee or he may be recommended by a member of the 
legal committee (R . p. 104).

Without exception, when a member of the legal com­
mittee brings a lawsuit in his community he requests other 
members of the committee to be associated with him (R .
p. 106).

The State Conference pays the expenses and fees of its 
lawyers for each case with the exception of the fees of 
Robinson which are paid by the “ Fund” in the form of an 
annual retainer (R . pp. 107-108).

Since there was some question of whether the provi­
sions of Chapters 33 and 36 would prohibit the payment 
of expenses and fees by the State Conference some of the 
litigants in the various school segregation cases were in­



16

formed that they might have to pay the costs of the 
N A A C P lawyers (R . p. 108). However, since July, 1956, 
the State Conference has paid to members of its legal 
committee for services and expenses incurred in school 
litigation the sum of $ 12,378.61. ( See defendants’ exhibit 
D-3 set forth as Appendix III  to this brief.) Further, 
Banks stated that he expects the State Conference to 
receive more outstanding bills for services rendered by 
Hill (R . p. 215).

The initial contact in the Charlottesville school segre­
gation case was made by the president of the local branch 
of the N A A C P requesting Hill to speak with certain par­
ents of school children residing in Charlottesville (R . p. 
109). The parents then signed papers, some of which 
authorized Hill to represent such parents and their chil­
dren. Other authorization forms passed out at the meet­
ing were signed with no attorney’s name appearing. Hill 
filled in his name as attorney on these after he returned to 
his office in Richmond (R . p. 109).

Authorization forms for use in all the school segrega­
tion cases were prepared by Hill for his use and the use 
of other lawyers on the legal committee of the State Con­
ference (R . p. 109). The form was so written as to 
authorize a particular attorney to associate such other 
attorneys as he saw fit (R . p. 110).

In the Charlottesville case Hill first associated Robin­
son, Martin, Ely and Tucker, the first three being from 
Richmond and Tucker residing in Emporia, Virginia (R . 
p. 110). The General Counsel for the N A A C P  also came 
down from New York for the trial of the Charlottesville 
case (R . p. 110). All of the Virginia lawyers were, of 
course, members of the legal committee of the State Con­



17

ference and are paid at the rate of $60.00 per day for their 
services. (See plaintiffs’ exhibit R-18, which states that 
“ the Conference agree to pay $60.00 per diem to attorneys 
as long as such attorneys adhere strictly to N A A C P 
policies” .)

Upon examination, Hill conceded that the State Con­
ference could have done without the services of Tucker 
but “ it was felt that it would be advisable and helpful if 
as many as possible of the lawyers who were in a particu­
lar community had some participation in the [school seg­
regation] cases” (R . p. 111). The idea was to train law­
yers for future school segregation cases (R . p. 111).

The authorization form used by the litigants in the 
Prince Edward case authorized the firm of Hill, Martin 
and Robinson as attorneys. It did not authorize the asso­
ciation of other attorneys (R . p. 120 and plaintiffs’ ex­
hibits R-12, R-13, R-14 and R-15). However, Hill testi­
fied that the General Counsel of the N A A C P  was associ­
ated because:

“We don’t regard the prosecution of a person’s 
constitutional rights with the same strictness that 
you would regard, say, handling a contract litigation 
for a particular individual client. This is something 
that the N A A C P was sponsoring. These people are 
actively connected with the N A A C P  and known to 
be, and these people whose rights we are trying to 
protect and assert are interested in getting the vindi­
cation of their rights, and they are not as much con­
cerned about the particular lawyers in the majority 
of instances— as to the number of lawyers, put it that 
way— as a client would be who was involved in a par­
ticular single piece of private litigation.” (R . p. 120)



18

Hill stated that it was well understood in civil rights 
cases that members of the N A A C P  and Negroes are en­
titled to representation by attorneys on the legal committee 
of the State Conference without cost to them (R . pp. 112- 
113 and 121). Negroes were informed of this by Hill 
and others in the press, in conventions and in meetings of 
local branches (R . p. 113).

Hill also testified that it was generally expected that 
the State Conference would “ sponsor” cases as long as 
the litigants adhered to the principles and policies of the 
Conference, namely, that a school case must be tried as a 
direct attack on segregation (R . p. 113).

S. W. Tucker of Emporia, a member of the legal com­
mittee of the State Conference, stated that his duties were 
“ to do whatever was necessary to advance our program. 
That would entail a study of cases, preparation of cases, 
trial of cases” (R . p. 231). He was never employed or 
compensated by the State Conference prior to his mem­
bership on the legal committee (R . p. 232). He entered 
Charlottesville and Warren County school segregation 
cases at the suggestion of Hill and his relationship with 
Chairman Hill “has been so pleasant and so profitable” 
(R . pp. 236-237). Tucker further stated that he handled 
cases all over the state for the Conference and received a 
per diem of $60.00 for his services (R . p. 237).

The defendants introduced certain exhibits to show 
the policies of the N A A C P, the State Conference and its 
branches, as well as the activities carried on pursuant 
thereto. For example, exhibit D-10 is a copy of a letter 
written by the Chairman of the Legal Committee, Oliver 
W. Hill, to W. Lester Banks, Executive Secretary of the 
Virginia State Conference concerning the feasibility of



19

N A A C P participation in a labor suit involving the State 
as the plaintiff and Robert Edwards and Willie Savage as 
defendants. The attorney for the defendants requested 
financial aid. Hill stated that it was contrary to the policy 
of the State Conference to grant financial aid in cases not 
handled by the N A A CP.

Exhibit D-4 is a copy of a letter written by the Execu­
tive Secretary of the State Conference dated July 1, 1953, 
wherein he stated that the N A A C P was not a legal aid 
society. It rendered aid in criminal cases only when inno­
cent Negroes had been charged with a crime solely because 
of race or color, or had been convicted of a crime when 
denied a proper jury trial, when a confession had been 
extorted through use of force, or when the accused had 
been denied the effective use of counsel. Banks testified 
that the statements contained in this exhibit still correctly 
state the policy of the Virginia State Conference (R .
p. 222).

Defendants’ exhibits D-7 and D-9 show that all mem­
bers of the N A A C P  and their attorneys cannot partici­
pate in any lawsuit which seeks to secure separate but 
equal facilities. The contents of exhibit D-9, being a letter 
from Spottswood W. Robinson, III, to Reverend N. W. 
McNair, reads as follows:

“ This is with reference to the matter, recently dis­
cussed with me, of participation by this office drafting 
a reply to a letter received by your group by the 
County School Board of Amelia County.

“ Upon our conference you advised that the effort 
of your group is to obtain consolidation of Negro 
elementary schools in said county, and that the effort 
is limited to this objective.



20

“A s you were then advised, it is not possible either 
for this office or the N A A C P to lend assistance in 
connection with this effort. In June, 1950, the A sso­
ciation adopted a policy requiring that all education 
cases seek facilities and opportunities on a racially 
nonsegregated basis. This policy is binding upon all 
Association attorneys, and it is apparent that the 
plans of your group do not conform to this policy.

“ At your request, Mr. W. Lester Banks, Executive 
Secretary, Virginia State Conference, N A A C P, was 
contacted, and he is arranging to visit your group at 
an early date to more fully explain the Association’s 
policy and its recommendation as to educational mat­
ters in your county.”

Defendants’ exhibit D-5 likewise states the policy of the 
Virginia State Conference which is to eliminate racial 
segregation in public schools rather than seek separate 
but equal facilities.

Part of the defendants’ exhibit D -l is a letter dated 
May 26, 1954, from the Executive Secretary of the V ir­
ginia State Conference to all of its members calling for a 
meeting to be held in Richmond on June 6, 1954, to “devel­
op techniques to put into immediate effect the N A A C P ’s 
Atlanta Declarations.”  Banks also stated in this letter: 
“ *  *  *  No conferences, petitions or other negotiations 
should be engaged in by N A A C P or other responsible 
leaders with local school officials until after the June 6 
meeting.”

Another letter from the Executive Secretary to the local 
branches, dated June 16, 1954, dealt with petitions to local 
school boards and requested the local branches to withhold 
their proceedings with respect to desegregation until com­
pletion of the organization of the State Conference’s pro­



21

gram. However, forms of petitions prepared by N A A C P 
legal department in New York in collaboration with the 
attorneys on the legal committee of the State Conference 
were forwarded to the various local branches directly from 
New York.

The last part of exhibit D -l is styled a “ confidential 
directive” , dated June 30, 1955, to the local branches and 
signed by the Executive Secretary of the Virginia State 
Conference which dealt with the method of processing 
petitions. It reads in part as follows:

“  (1 ) • For your convenience we are enclosing four 
petitions (2  to the Secretary, and 2 to the President). 
Upon receipt of the petitions, the Chairman of your 
Education Committee or another responsible branch 
official will fill in the appropriate spaces designating 
(a )  County or city, (b ) name of School Board, and 
(c) name of your Division Superintendent. Do not 
fill in the last two lines at the bottom of petition.

“ (2 ) . Petitions will be placed only in the hands of 
highly trusted and responsible persons to secure sig­
natures of parents or guardians only. Each petition 
has an attached sheet for the signatures of 35 names 
and addresses. I f  a petition bearer needs additional 
space, provide one or more of the extra sheets being 
sent under separate cover.

“ (3 ) . Petitions are to be signed by parents or 
guardians themselves, and if they cannot write some­
one can sign for them letting them make an (X )  
mark, but be sure to have a witness to this fact.

“ (4 ) . In event a petitioner’s handwriting is not 
readible, the bearer of the petition should— in a tact­
ful manner— secure the name and address of the peti­
tioner and attach it to the petition (example: line 15



22

reads; Mrs. Lucy Wright, Route 1, Box 295, Old- 
town, V irginia).

“ (5 ) . Signatures should be secured from parents 
or guardians in all sections of the county or city. 
Special attention should be given to persons living in 
mixed neighborhoods, or near formerly white schools.

“ (6 ) . The signing of the petition by a parent or 
guardian may well be only the first step to an extend­
ed court fight. Therefore, discretion and care should 
be exercised to secure petitioners who will— if need 
be— go all the way.

“ (7 ) . Set an early deadline when petitions will be 
returned to your Education Committee’s Chairman. 
The quicker they are returned, the sooner your peti­
tion can be filed.

“ (8 ) . The Education Committee’s Chairman will 
forward completed petitions to the Executive Secre­
tary of the State Conference. The Chairman of the 
Education Committee, or other responsible branch 
official will furnish the State Secretary, at the time 
of transmittal of petitions, the name and location of 
meeting site.

“ (9 ) .  Immediately upon receipt of petitions by the 
State Secretary, he will notify all the petitioners and 
branch officials that an emergency meeting will be 
held at the meeting site designated by the branch 
official.

“ (10 ). At that meeting, everyone will be advised 
as to the next steps. It is absolutely necessary that 
all of the petitioners be present at this meeting.”

The directions quoted above were established and adopt­
ed by an emergency southwide N A A C P  conference held



23

in June, 1955, as shown by the defendants’ exhibit D-8. 
It reads in part as follows:

“ *  *  *  it  is the job of our branches to see to it 
that each school board begins to deal with the prob­
lem of providing non-discriminatory education. To 
that end we suggest that each of our branches take 
the following steps:

“ 1. File at once a petition with each school board, 
calling attention to the May 31 decision, requesting 
that the school board act in accordance with that deci­
sion and offering the services of the branch to help 
the board in solving this problem.

“2. Follow up the petition with periodic inquiries 
of the board seeking to determine what steps it is 
making to comply with the Supreme Court decision.

“ 3. All during June, July, August and September, 
and thereafter, through meetings, forums, debates, 
conferences, etc., use every opportunity to explain 
what the May 31 decision means, and be sure to em­
phasize that the ultimate determination as to the 
length of time it will take for desegregation to be­
come a fact in the community is not in the hands of 
politicians or the school board officials but in the 
hands of the federal courts.

“ 4. Organize the parents in the community so that 
as many as possible 'will be fam iliar with the proce­
dure when and if  law suits are begun in behalf of 
plaintiffs and parents.

“ 5. Seek the support of individuals and commu­
nity groups, particularly in the white community, 
through churches, labor organizations, civic organi­
zations and personal contact.



24

“6. When announcement is made of the plans 
adopted by your school board, get the exact text of 
the school board’s pronouncements and notify the 
State Conference and the National Office at once so 
that you will have the benefit of their views as to 
whether the plan is one which will provide for effec­
tive desegregation. It is very important that branches 
not proceed at this stage without consultation with 
State offices and the National office.

“ 7. I f  no plans are announced or no steps tozvards 
desegregation taken by the time school begins this 
fall, 1955, the time fo r a lazv suit has arrived. At 
this stage court action is essential because only in 
this way does the mandate of the Supreme Court that 
a prompt and reasonable start towards full compli­
ance become fully operative on the school boards in 
question.

“ 8. At this stage the matter zvill be turned over 
to the Legal Department and it zvill proceed with the 
matter in court.”  (Emphasis added)

A  memorandum written by Banks and introduced and 
marked as defendants’ exhibit D-2 shows that the 
N A A C P  and the Virginia State Conference have con­
tinued the policies and activities outlined above. It reads 
in part as follow s:

“ IV. Up to Date Picture of Action by N A A C P
Branches Since M ay 31.

“ A. Petitions filed and replies
A  total of 55 branches have circulated peti­
tions.

“ B. Where suits are contemplated
Petitions have been filed in seven (7 )



25

counties/cities. Graduated negative re­
sponse received in all cases.

“ C. Readiness of lawyers for legal action in 
certain areas
Selection of suit sites reserved for legal 
staff.
State legal staff ready for action in selected 
areas.

“ D. Do branches want legal action
The majority of our branches are willing 
to support legal action or any other pro­
gram leading to early desegregation of 
schools that may be suggested by the na­
tional and state Conference offices. Our 
branches are alert to overtures by public 
officials that Negroes accept voluntary ra­
cial segregation in public education.”

Banks explained that the language, “ Where suits are 
contemplated” referred to places where petitions had been 
denied by local school boards (R . p. 217). The language 
“ Readiness of lawyers for legal action in certain areas” 
meant financial aid was available (R . p. 218). Finally, 
the language “ Selection of suit sites reserved for legal 
staff” meant that members of the legal committee of the 
State Conference would pick the places where lawsuits 
would be brought (R . p. 219).

Barbara S. M arx, one of the plaintiffs in the Arlington 
school segregation case, testified that she is vice president 
of the local branch of the N A A C P  in Arlington County. 
Before the commencement of the Arlington case she 
signed a petition which was received by the local branch



26

directly through the mail from the State Conference in 
Richmond (R . p. 171). The petition was then discussed 
in a branch meeting and she helped circulate it. Mrs. 
M arx also talked with Hill and Robinson about whether 
legal action would follow the refusal of the petition by the 
school board (R . p. 172). She also stated that she knew 
that Hill and Robinson would be the lawyers when the 
time came to file the Arlington school segregation suit 
(R . pp. 172-173).

Other litigants in the school cases from Arlington, 
Charlottesville and Newport News were examined by the 
defendants. All of them, with one exception, stated that 
they had paid no attorney’s fees and that no bills for serv­
ices rendered had been submitted. Some declared that 
they would pay if a bill was rendered, while others said 
they expected the N A A C P to pay the cost of attorney’s 
fees. See Appendix IV.

Some of the litigants examined also stated that they 
had no personal contact with the attorneys of the N A A CP. 
Others stated that N A A C P attorneys were used since 
they were members of the N A A CP. Only one litigant 
examined by the defendants stated that she would have 
brought suit even if the N A A C P  had not agreed to 
finance it.

Nineteen litigants were examined concerning their 
yearly family income and such income ranged from a low 
of $3,500 to an estimated high of between $13,000 to 
$17,000. See Appendix IV. Thus, of nineteen litigants 
examined, the yearly family income averaged approxi­
mately $7,000 for each.

Ten litigants were examined concerning the value of



27

real property owned by them. These estimates ranged 
from a low of $12,000 to a high of $87,000. See Appen­
dix IV. The average of the value of real estate thus held 
approximates $35,000 for each litigant.

The statements of the facts set forth above is the evi­
dence material to the consideration of the questions pre­
sented and will be summarized and discussed where nec­
essary in the defendants’ argument.

A s to the plaintiffs’ statement of facts, it should be 
pointed out that the contributions and aid toward the 
prosecution of lawsuits are largely in the form of fur­
nishing attorneys who are members of the legal commit­
tee of the Virginia State Conference. The record shows 
that the only financial aid furnished is the payment of 
court costs and other such expenses of litigation.

The N A A C P  representatives and officers publicly urge 
Negroes to assert their constitutional rights so it cannot 
be stated that the Association does not act until some indi­
vidual comes to it for help. (See defendants’ exhibit D-8 
and Tr., pp. 40, 41, 108 and 109.)

The statement that the Association does not direct or 
control litigation is also false. The N A A C P  has absolute 
direction and control. (See defendants’ exhibits D-7 and 
D-9 and Tr., p. 108.)

The plaintiffs state that legal aid and assistance is 
granted where the litigant is financially unable to bear the 
cost o f the litigation. Again, this is not true. No investi­
gation of the financial condition of litigants is made (Fed. 
Tr., pp. 156 and 344). The record also shows affirmatively 
that many litigants are able to finance their own lawsuit 
(Fed. Tr., p. 315 and Appendix IV  to this brief).



28

ARGUMENT

I.

Certain Activities of the Plaintiffs 
Are Prohibited by Chapter 33

First of all, a corporation cannot practice law and it is 
a misdemeanor to do so without authority. Sections 54-42 
and 54-44, Code of Virginia, and Richmond A ss’n of 
Credit Men v. B ar Association, 167 Va. 327 (1937).

In its definition of the practice of law, this Court has 
said:

“ The relation of attorney and client is direct and 
personal, and a person, natural or artificial, who un­
dertakes the duties and responsibilities of an attorney 
is none the less practicing law though such person 
may employ others to whom may be committed the 
actual performance of such duties.” (171 Va. xvii)

Costs, expenses and investigations of legal cases are 
borne by the Legal Defense Fund and legal assistance and 
aid in cases involving discrimination against Negroes 
include the legal services of its Southeastern Regional 
Counsel who is on an annual retainer for such purposes. 
Counsel for the Legal Defense Fund also renders legal 
assistance to Negroes by representing them in court and 
otherwise. Further, the Legal Defense Fund maintains 
a full-time legal staff of six attorneys to conduct research 
and render legal advice to Negroes.

The N A A C P  employs a general counsel, Robert L. 
Carter, and one of his duties has been to represent the 
various plaintiffs in the school segregation cases. The



29

N A A C P  offers “ legal advice and assistance and counsel, 
and Mr. Carter is one of the commodities.”

The State Conference, which is the “arm” of the 
N A A C P in Virginia, has a legal staff of fifteen lawyers, 
and all prospective plaintiffs are referred to the chairman 
thereof to determine whether they have “a legitimate sit­
uation that the N A A C P  should be interested in.”  I f  they 
do, a member of the legal staff will represent them in 
court and will be paid by the State Conference.

The activities of the plaintiffs are prohibited by Rich­
mond A ss’n. of Credit Men v. B ar Association, supra. 
There, the credit association undertook to effect collec­
tions of business accounts first by personal calls or letter 
and then by employment of an attorney selected by it. The 
fees of such lawyer were fixed by the association and it 
held itself out to be in the business of collecting liquidated, 
commercial accounts. Furthermore, the association so­
licited claims both from its own members and others. In 
the letter employing the lawyer, the association purported 
to act “as agent for the creditor.”  It was held to be en­
gaged in the unauthorized practice of law.

The clients or complainants usually come directly to the 
Legal Defense Fund or the State Conference at which 
time they are referred to either the lawyer retained by the 
Legal Defense Fund or a member of the legal staff of the 
State Conference who serves in that capacity without 
compensation. Under such circumstances the following 
language found in the Richmond A ss’n. o f Credit Men 
case is pertinent:

“ ‘The relation of attorney and client is that of 
master and servant in a limited and dignified sense,



30

and it involves the highest trust and confidence. It 
cannot be delegated without consent, and it cannot 
exist between an attorney employed by a corporation 
to practice law for it, and a client of the corporation, 
for he would be subject to the directions of the cor­
poration, and not to the directions of the client.’ 
Re Co-Operative Law  Co., 198 N. Y. 479, 92 N. E. 
15, 16, 32 L. R. A. (N . S .)  55, 139 Am. St. Rep. 839, 
19 Ann. Cas. 879.” (167 Va. at p. 335)

On August 26, 1957, in the case of Virginia State B ar  
v. Schmidt & Wilson, the Law and Equity Court of the 
City of Richmond entered a declaratory decree and per­
manent injunction against a real estate corporation for 
engaging in practices constituting the illegal practice of 
law. It reads in part as follows:

“ The Court doth adjudge and decree that the fol­
lowing practices when engaged in by a real estate 
broker, constitute the illegal practice of law, to-wit:

“ (a )  Advertising in a newspaper that it will provide 
the services of an attorney at law for its 
patrons.

“ (b) Providing, for compensation, legal services to 
its patrons in the preparation of deeds and 
deeds of trust and in advising them with regard 
to the legal problems incident to real estate 
transactions, and

“ (c) Representing its patrons in Court in the collec­
tion of rent and other matters.”

Subsequent to the Richmond A ss’n. of Credit Men case, 
a credit association changed its method of procedure by 
permitting the creditor to select and employ the attorney.



31

However, the attorney was to advise the association of 
the progress with regard to the collection. It was held by 
the Committee of the Virginia State Bar on Unauthorized 
Practice of Law that the procedure of the attorney report­
ing to a lay agency acting as an intermediary amount to 
the unlawful practice of law. Ninth Annual Report of 
the Virginia State Bar, p. 37. See, also, Opinion dealing 
with corporate real estate rental agent in Seventeenth 
Annual Report of the Virginia State Bar, p. 32.

In the Ninth Annual Report of the Virginia State Bar, 
p. 39, the Committee on Unauthorized Practice also ren­
dered an opinion which is pertinent to consider. The facts 
were that a union retained an attorney on a salary basis 
to represent all o f its individual members in their claims 
for compensation before the State Industrial Commission. 
He received no fees from the individuals for such repre­
sentation, his sole compensation coming from the salary 
paid him by the union. The Committee held that the 
union was a lay agency practicing law without a license; 
that it was selling the services of a lawyer and intervening 
between him and his clients; and that the attorney was in 
violation of the Canons of Ethics.

At this time, it is also important to note that Canon 47 
of the Canons of Professional Ethics adopted and promul­
gated by this Court reads as follows:

“ Aiding the Unauthorized Practice of Law.— No 
lawyer shall permit his professional services, or his 
name, to be used in aid of, or to make possible, the 
unauthorized practice of law by any lay agency, per­
sonal or corporate.” (171 Va. xx xv )

Evidence was produced to show that some of the plain­



32

tiffs in the school segregation cases had no personal rela­
tion with the attorneys for the N A A C P or the Legal De­
fense Fund. Furthermore, the attorneys submitted their 
bills to the State Conference and not to their so-called 
clients, Robinson being paid by the Legal Defense Fund. 
It should also be again pointed out that neither the 
N A A C P, its State Conference nor the Legal Defense 
Fund make any investigation as to the financial condition 
of the individual plaintiffs.

Canon 35 reads in p art:

“ Intermediaries.— The professional services of a 
lawyer should not be controlled or exploited by any 
lay agency, personal or corporate, which intervenes 
between client and lawyer. A  lawyer's responsibili­
ties and qualifications are individual. He should avoid 
all relations which direct the performance of his 
duties by or in the interest of such intermediary. A 
lawyer’s relation to his client should be personal, and 
the responsibility should be direct to the client. Char­
itable societies rendering aid to the indigent are not 
deemed such intermediaries.” (171 Va. xxx ii)

The Committee on Legal Ethics of the Virginia State 
Bar has had the occasion to render opinions under the 
Canons of Professional Ethics and Opinion No. 10 dealt 
with a corporation which desired to employ an attorney to 
consult with its employees as to their personal legal prob­
lems. The corporation’s interest was to prevent time lost 
from work and the duties of the attorney were to handle 
only simple legal problems. In more complex cases, such as 
lawsuits, the employees would be advised by the attorney to 
consult an attorney of their own choosing. The corporation’s 
attorney would, however, represent the employee if request­



33

ed, charging a reasonable fee to be paid by the employee. 
The Committee held that the acceptance of such employ­
ment by the attorney would be unethical. Ninth Annual Re­
port of the Virginia State Bar, p. 32. See, also, Fifteenth 
Annual Report of the Virginia State Bar, p. 34, Opinion 
No. 41 dealing with a printing firm offering the services 
of an attorney to prepare briefs.

Opinion No. 43 involved an attorney who was to be 
employed by a hospital and furnished with an office there­
in. He was to collect accounts and advise patients on hos­
pital insurance policies held by them. The Committee 
ruled that it would be improper for the said attorney to 
represent patients of the hospital in personal injury claims. 
Fifteenth Annual Report of the Virginia State Bar, p. 34.

In Opinion No. 45 a Virginia attorney wished to form 
a corporation to sell insurance policies to persons to fur­
nish them legal services up to a limited amount of fees, the 
insured to choose his own attorney. The Committee held 
that it would be improper to insure reimbursement for a 
plaintiff’s attorney fees because to do so would incite, 
encourage and promote litigation. Sixteenth Annual Re­
port o f the Virginia State Bar, p. 30.

Section 54-74 of Chapter 33 condemns the practice of 
law without a license and paragraph (6 ) thereof defines 
malpractice to be the acceptance of compensation by an 
attorney from a corporation which is guilty of practicing 
law. Thus, it can be seen that the provisions of Chapter 33 
not only apply to the plaintiff corporations but also apply 
to their attorneys.

Furthermore, it is clear from the record that the actions 
of the N A A C P  cannot be separated from the actions of 
the Virginia State Conference and its local branches. It



34

is equally clear that the activities of these organizations, 
their officers and agents come within the provisions of 
§ 54-78 of Chapter 33 and amount to the solicitation of 
business prohibited by § 54-79 thereof.

For example, the Executive Secretary of the Virginia 
State Conference testified as follows:

1. Prospective plaintiffs come to the State Con­
ference for assistance (Fed. Tr., p. 27).

2. When complaints are received they are referred 
to the legal committee of the State Conference (Fed. 
Tr., p. 37).

3. All cases in which the State Conference pay 
attorneys’ fees are, in almost every instance, handled 
by members of its legal staff (Fed. Tr., pp. 41-42).

4. The State Conference attempts to educate Ne­
groes as to civil rights and inform them how such 
rights may be enforced (Fed. Tr., p. 33).

Defendants’ exhibits D -l, D-7, D-8 and D-9 are other 
examples of how the N A A C P  solicits business for its 
attorneys and completely directs and controls litigation.

The testimony of the president of the Charlottesville 
branch and the vice president of the Arlington branch also 
make it clear that the N A A C P solicits business in viola­
tion of Chapter 33.

Sections 54-78 and 54-79 are also applicable to the 
Legal Defense Fund. It is uncontradicted that this cor­
poration holds itself out to render legal services to Ne­
groes. By doing so, it solicits business for its attorneys, 
one of which is Robinson. Without such solicitation, there



35

would be no need to retain Robinson and others on a 
yearly basis.

n.
Chapter 36 Is Applicable to Some of the 

Activities of the Plaintiffs

Chapter 36 prohibits the offering or giving, or agreeing 
to receive, or accepting, or soliciting or requesting, any­
thing of value “as an inducement” to another to commence 
or further prosecute a lawsuit against the Commonwealth 
or any of its agencies or political subdivisions. Certain 
exceptions are made, namely,

1. I f  the person has a personal right in the litigation ;

2. I f  the person has a pecuniary right in the litigation ;

3. I f  the person is related by blood or marriage to the 
plaintiff ;

4. I f  the person occupies a position of trust with the 
plaintiff; and

5. I f  the person stands in the position of loco parentis 
with the plaintiff.

It is also provided that Chapter 36 shall not be con­
strued to prohibit the constitutional right of “ regular 
employment of any attorney at law.” Furthermore, legal 
advice must be sought in accordance with the Virginia 
canons of legal ethics.

The common law of England is in force in Virginia. 
See § 1-10, Code of Virginia, 1950. Chapter 36 defines 
the common law crime of maintenance. There are many



36

and varied definitions given in the reported cases concern­
ing maintenance. However, strictly speaking, maintenance 
is the assisting of another person in a lawsuit without hav­
ing any privity or concern in the subject matter. Wick­
ham v. Conklin, 8 Johns (N . Y .)  220, 228.

Maintenance is, perhaps, best defined in Blackstone’s 
Commentaries, Book 4 at p. 135 as :

“ an officious intermeddling in a suit that no way be­
longs to one by maintaining or assisting either party, 
with money or otherwise, to prosecute or defend it.”

Most of the reported cases hold that a person does 
not act “ officiously” by furnishing money or other help 
when:

1) he has a personal right involved;

2 ) he has a pecuniary right involved;

3) he is connected by consanguinity or affirmity to the 
litigant; or

4) he stands in relationship as landlord and tenant or 
master and servant with the litigant.

See Nichols v. Bunting, 3 Hawks (N . C .) 86 and 
M ’Intyre v. Thompson, 10 F . 531 (W . D. N. C .).

It can thus be seen that the provisions of Chapter 36 
substantially conform to the common law definition of the 
crime of maintenance. Further, the record of the activi­
ties of the plaintiffs make it plain that they do not come 
within the exceptions enumerated therein.

In Thursten v. Percival, 18 Mass. (1 Pick.) 415, 416, 
maintenance was defined as follows:



37

“ Maintenance is strictly prohibited by the common 
law, as having a manifest tendency to oppression by 
encouraging, and assisting persons to persist in suits 
which perhaps they would not venture to go on in 
upon their own bottoms.”  (Em phasis added)

The proper interpretation of the word, “ inducement” , 
as used in Chapter 36, must now be considered to deter­
mine whether the activities of the plaintiffs come within 
the meaning of that word.

The defendants agree that penal statutes must be strict­
ly construed. However, it is equally true that in constru­
ing penal statutes the legislative intent is to be found by 
giving words the meaning in which they are used in ordi­
nary speech. See Tiller v. Commonwealth, 193 Va. 418, 
420; Board of Supervisors v. Boas, 176 Va. 126, 130; and 
Gates &  Sons Co. v. Richmond, 103 Va. 702, 707.

Webster’s New International Dictionary (2nd ed., un­
abridged) defines “ induce” as, “ to lead on; to influence; 
to prevail on; to move by persuasion or influence.” Also, 
“ inducement” is a synonym for “ incentive, reason, influ­
ence.”

In cases construing the National Labor Relations Act, 
the Mann Act and the California Narcotics Law, the word 
“ induce” is construed to mean nothing more than “ encour­
age.”  See International Brotherhood v. N L R B , 341 U. S. 
694 (1 9 5 1 ); LaP age  v. United States, 146 F. (2d) 536 
(8th Cir., 1945); and People v. Drake (Cal., 1957), 310 
P. (2d) 977.

In the case of Commonwealth v. Mason, 175 Pa. Supp. 
576, 106 A. (2d) 877 (1954), the court considered a sec­
tion of the Pennsylvania Securities Act and found that



38

there had been an inducement in violation thereof. It was 
pointed out that the word induce includes every form of 
influence and persuasion and does not necessarily include 
any element of fraud or coercion. See, also, Restatement 
of Torts, §766.

Induce means to influence, to persuade, to encourage. 
This being true, there can be no question that the activities 
of plaintiffs are such as to induce Negroes to bring or 
further prosecute lawsuits aghinst agencies of the Com­
monwealth.

Only one witness, out of some twenty-four litigants in 
school cases, testified that she would have brought a law­
suit even if the N A A C P  had not agreed to finance it. 
Further, the exhibits introduced by the defendants make 
it abundantly clear that the plaintiffs encourage and influ­
ence the bringing of lawsuits. Finally, the plaintiffs’ own 
summary of their activities admits o f encouragement, 
persuasion and influence of prospective litigants.

To conclude, it is appropriate to again quote from ex­
hibit D-8 as follows:

“4. Organize the parents in the community so 
that as many as possible will be familiar with the 
procedure when and if law suits are begun in behalf 
of plaintiffs and parents.

* *  *

“ 7. I f  no plans are announced or no steps towards 
desegregation taken by the time school begins this 
fall, 1955, the time for a law suit has arrived. At this 
stage court action is essential because only in this 
way does the mandate of the Supreme Court that a 
prompt and reasonable start towards full compliance 
become fully operative on the school boards in ques­
tion.



39

“ 8. At this stage the matter will be turned over to 
the Legal Department and it will proceed with the 
matter in court.”

m .
Freedom of Speech and Chapters 33 and 36

The plaintiffs contend that the provisions of Chapters 
33 and 36 violate their freedom of speech and assemblage 
and restrain their political activities. Such cases as Wat­
kins v. United States, 354 U. S. 178 and Sweezy v. New  
Hampshire, 354 U. S. 234, are cited.

In the Watkins case, supra, a congressional committee 
inquired of a witness as to his associations in 1947. The 
witness refused to identify his associates during that 
period on the ground that he did not now believe they 
were identified with the Communist Party. The Supreme 
Court held that Congress had not authorized an investiga­
tion of this nature and stated that a conviction of con­
tempt for refusal to answer a question propounded by a 
congressional committee must necessarily depend upon the 
authority of the committee. In other words, there was no 
relationship between an inquiry as to past associations and 
the purpose for which the congressional committee was 
formed.

In Sweezy v. New Hampshire, supra, the Supreme 
Court also held that questions propounded a witness by a 
legislative committee concerning past associations were 
not authorized by the Legislature.

The above-mentioned cases obviously are not control­
ling here. Chapters 33 and 36 do not prohibit the plain­
tiffs’ freedom to speak or to join. They prohibit, under



40

certain circumstances, the financing of lawsuits and the 
solicitation of litigants.

The defendants also agree that under the holding in 
Thomas v. Collins, 323 U. S. 516, a case cited by the plain­
tiffs, there is some doubt as to whether mere statements at 
public meetings would be considered solicitation rather 
than an exercise of free speech. However, the plaintiffs 
do more. All of the litigants, or prospective litigants, in 
the school segregation cases are referred by representa­
tives of the plaintiffs to the attorneys on the legal com­
mittee of the Virginia State Conference. Lay agencies 
thus funnel legal business to selected lawyers which vio­
lates not only the provisions of Chapter 33 but also 
Opinion No. 10 of the Committee of the Virginia State 
Bar on Legal Ethics discussed on page 32 of this brief.

The Legal Defense Fund, while being a separate cor­
poration, is in fact a part of the N A A C P. (See Fed. Tr., 
p. 321.) However, it is qualified as a Legal Aid Society in 
New York and its charter provides that its purpose is to 
help Negroes “ unable to employ and engage legal aid and 
assistance on account of poverty.” The records show that 
no investigation is made of the litigants assisted by the 
“ Fund” . Furthermore, Thurgood Marshall conceded that 
the current school segregation cases in Virginia could be 
carried on at a cost of $2,500 or less (Fed. Tr., p. 315) 
and that a person who “ had a $15,000 home free and clear, 
he would be in pretty good shape” to finance his own 
lawsuit (Fed. Tr., p. 315). Most of the litigants in the 
current school cases examined in this case could qualify 
as being able to finance their own lawsuits. (See Appen­
dix IV  of this B rief.) Thus, it cannot be argued that



41

Chapters 33 and 36 “ fetter access to the Federal courts” 
as claimed by the plaintiffs.

The N A A C P concedes that it is not a legal aid society 
(D efs.’ exh. D -4). Its activities and policies may be sum­
marized as follows:

1) No aid is granted in lawsuits not handled by it 
(D efs.’ exh. D -10);

2) It does not render aid to Negroes merely be­
cause they may be indigent (Fed. Tr., p. 156 and 
D efs.’ exh. D-4) ;

3) No investigation is made as to the financial 
status of a prospective litigant (Fed. Tr., p. 156) ;

4) It will not render aid to Negroes merely seek­
ing separate but equal facilities (D efs.’ exhs. D-5 
and D - 9 ) ;

5) It will furnish aid only when its own lawyers 
handle the case (D efs.’ exh. D -1 0 );

6) It directs and controls the litigation and thus 
stands between the client and attorney (R . p. 113 and 
D efs.’ exhs. D-7 and D-9) ; and

7) It solicits business (D efs.’ exhs. D-2 and D-8).

The activities of the plaintiffs outlined above are not 
protected by the Fourteenth Amendment’s guarantee of 
free speech and the plaintiffs have cited no cases which 
hold such activities are so protected.

The plaintiffs speak of group sponsorship of litigation 
and cite many cases wherein such sponsorship supposedly



42

occurred. First, there is no evidence of the method of 
sponsorship carried on in the cases cited by the plaintiffs. 
Certainly, it cannot be assumed that the activities leading 
up to the bringing of such cases were similar to the activi­
ties of the plaintiffs as shown by the record in this case. 
Further, it is perfectly clear that the so-called “ sponsors” 
had a direct interest in such cases as Brannon v. Stark, 
185 F. (2d) 871, aff’d. 342 U. S. 451; Vitaphone Corp. 
v. Hutchison, 28 F. Supp. 526; and Bigelow  v. Old Do­
minion Copper, 74 N. J . Eq. 457, 71 Atl. 153.

The plaintiffs apparently also rely upon opinions ren­
dered by committees of the local bar of New York City 
but ignore the many applicable opinions rendered by the 
appropriate committees of the Virginia State Bar.

As late as July 11, 1958, the Committee on Unauthor­
ized Practice of Law of the Virginia State Bar handed 
down Opinion No. 30 relating to the acceptance of busi­
ness from lay agencies. See Virginia Bar News, Vol. V I, 
No. 12, p. 3. No mention was made of the possible profit 
to be gained by the collection agency and the opinion con­
cluded with the following language which is applicable to 
this case:

“ Under the facts stated above, the lay agency at 
all times stands between the client and the lawyer and 
too many opportunities exist for the selection of the 
attorney by the lay agency and the control by the lay 
agency of the course of the prosecution of the claim, 
practices which were condemned by the decision of 
Richmond Association of Credit Men v. Bar Associ­
ation of the City of Richmond, 167 Va. 327.”

Finally, the plaintiffs make the bold statement that “no



43

court in the United States has ever denied the right of 
individual or group sponsorship of litigation, such as is 
here involved” (N A A C P ’s B., p. 28).

The defendants venture to guess that no court in the 
United States has had before it such a set of facts as has 
this Court. These cases do not involve the activities of a 
legal aid society. The plaintiffs do not limit their assist­
ance to indigent persons. They do not make contributions 
to an individual in order that he may retain an attorney of 
his choice and their attorneys do not volunteer free legal 
service in aid of an indigent litigant. The plaintiffs’ at­
torneys are paid for their services.

There can be no doubt that statutes prohibiting “ run­
ning and capping” are constitutional, and to enumerate 
all of the cases so holding is not necessary. The case of 
McCloskey v. Tobin, 252 U. S. 107, upheld a Texas 
statute prohibiting solicitation and maintenance, and it 
suffices to quote from 53 A. L. R. at page 279 wherein the 
law is summarized as follows:

“The solicitation of employment by an attorney, 
either personally or through others, is contrary to the 
ethics of the legal profession, and statutes prohibiting
such solicitation have been upheld as constitutional 
*  *  *  ”

The plaintiffs to the contrary, statutes concerning solici­
tation do not have to be limited to personal injury cases. 
(See 53 A. L. R. 279.) Further, the offense of solicitation 
does not necessarily include as an element thereof “ a share 
in the personal or real property recorded” as alleged by the 
plaintiffs. The Court is not here concerned with the crime



44

of champerty. See, generally, 121 A. L. R. 847. A s al­
ready pointed out, this Court has before it the offense of 
maintenance and the four common law exceptions are 
present in Chapter 36. Cases dealing with legal aid to 
poor suitors are not material under the facts of these 
cases.

Again, the defendants’ exhibits which include confi­
dential directives and memoranda of the N A A C P  prove 
that the activities of the plaintiffs come within the provi­
sions of Chapter 36. Such communications to the local 
branches, their officers and members have a purpose that 
may be summarized as follows:

“ *  *  *  Mr. Thurgood Marshall, chief legal counsel 
of the N A A C P, has said that the hardest job his staff 
has had in bringing equal-education suits has been to 
persuade Negro teachers and representatives Negro 
parents to stand as plaintiffs. *  *  (The National
A ss’n. for the Advancement of Colored People: A 
Case Study in Pressure Groups, St. James, Exposi­
tion Press Inc., at page 107.)

Though this be a case of first impression and no deci­
sions have been found directly in point, the defendants 
will conclude by discussing a few cases in foreign juris­
dictions wherein the facts, or some of them, were some­
what similar to the facts before this Court.

1. In the case of Re Ma-club of America, Inc. ( M ass.), 
3 N. E. 2d 272, 105 A. L. R. 1360, the court found that 
an automobile association had been formed for the pur­
pose of furnishing its members with lists of attorneys 
who would perform services for such members free of



45

charge. The attorneys would look to the association for 
payment. The association knew nothing of the particular 
cases and took no part in the direction or control of them. 
Furthermore, it had no salaried attorneys of its own.

Under the above set of facts, the Massachusetts court 
held the association to be engaged in the illegal practice 
of law. The court found:

1) Relationship of attorney and client did not 
exist between the association’s member and the attor­
ney;

2) The particular attorney was compensated by 
the association and subject to its instructions;

3) The association possessed the right to hire and 
fire; and

4) The practice was considered a contract to fur­
nish legal asstance rather than a contract to pay for 
legal assistance.

2. The case of People ex rel Chicago B ar Association 
v. Chicago Motor Club, 362 111. 50, 199 N. E. 1 (1935), 
involved a non-profit corporation organized for the benefit 
of motorists. The following facts were found by the 
court:

1) The objects of the corporation could be attained 
only through a voluntary association such as it was 
and only through the lawyers employed by it ;

2) The results achieved by the association and its 
legal department benefited not only its members but 
all m otorists;



46

3) The association and its legal department had 
been approved by the local bar association and had 
received an exemption from the operation of the 
canons of ethics ;

4 ) The association solicited membership and its 
members were entitled to request the services of an 
attorney; and

5) The members of the association were not per­
mitted to choose their own attorneys.

The Illinois court found that the association was en­
gaged in the illegal practice of law even though it was a 
non-profit organization and had rendered valuable service 
to its members and the community.

3. A  corporation organized to permit united protection 
of certain taxpayers in matters of taxation and legislation 
was considered in the case of People ex rel Courtney v. 
Association of Real Estate Taxpayers, 4 111. 102, 187 N. 
E. 823. There, the Illinois court found the following 
fac ts :

1) Owners of real estate were invited to become 
members of the corporation and pay fees;

2 ) The corporation employed lawyers to represent 
it in all litigation concerning the validity of certain 
tax legislation;

3) The attorneys were selected and paid by the 
corporation; and

4) The corporation determined what questions 
were to be litigated.



47

The court found that the corporation was engaged in 
the illegal practice of law even though the lawsuits were 
brought in the name of individual members and fees in 
certain cases would have cost an individual approximately 
$200,000.

4. The case of Dorghty v. Grills, 37 Tenn. App. 63, 
260 S. W. 2d 379 (1952), involved a situation where the 
defendant advised members of a railroad brotherhood of 
certain services furnished by its legal department. The 
defendant had advised a widow to go to the regional coun­
sel for the brotherhood in order to obtain free legal advice 
though he insisted that he had advised her and other mem­
bers of the brotherhood that the employment of the region­
al counsel was optional.

The defendant contended that he only referred mem­
bers of the brotherhood to its regional counsel for free 
advice. A fter the advice was given the regional counsel 
would then resume the private practice of law.

The court stated that the distinction mentioned above 
was too “ fine cut” . Such a story “could only be accepted 
as true by one extraordinarily naive and unrealistic.”

An injunction was issued restraining the defendant and 
others from acting as “ runners” and “ solicitors” on the 
ground that they were assisting the brotherhood in the 
illegal practice of the law. For other examples of similar 
schemes see Hilebrand v. State B ar of California, 225 P. 
2d 508 (1950) ; Atchison, Topeka &  Santa Fe  Railway 
Co. v. Jackson, 235 F. (2d) 390 (10th Cir., 1956); and 
In Re Brotherhood of Railroad Trainmen, 13 111. 2d 391, 
150 N. E. 2d 163 (1958), Virginia Bar News, Vol. VI, 
No. 4, p. 6.



48

It is clear that the various activities found by the courts 
in the cases mentioned above are not protected by the 
Fourteenth Amendment. It is equally true that the activi­
ties of the plaintilfs, many of which are similar to those 
condemned in above cited cases, are not so protected.

IV.

Equal Protection and Chapter 36

The plaintiffs state that the provisions of Chapter 36 
discriminate in favor of all groups except those concerned 
with race. The N A A C P  further states at page 32 of its 
b r ie f:

“ The effect of the discrimination is also to give 
all but Negroes an opportunity to raise sufficient 
funds to carry on costly litigation— in other words, 
an economic advantage is secured by all but Negroes.”

Once again, it must be emphasized that Chapter 36 does 
not prevent the raising of funds. It prohibits maintenance.

The contention to the effect that Chapter 36 does not 
prohibit the activities of other groups is not sound. In 
the first place, the provisions of Chapter 36 apply to all 
groups that carry on activities similar to the activities of 
the plaintiffs. The plaintiffs’ own briefs point to various 
groups who have sponsored legislation.

It is, of course, a “ fact” question not before this Court 
as to whether the activities of any other groups have vio­
lated, violate, or will violate the provisions of Chapter 36.

The case of Williamson v. Lee Optical Company, 348 
U. S. 483, 489, illustrates the principle that a statute does 
not violate the equal protection clause of the Fourteenth



49

Amendment for failure to be applicable to the whole field 
of abuses.

Also, in United States v. Carotene Products Co., 304 
U. S. 144, the Supreme Court was concerned with the 
Filled Milk Act, which had been enacted by Congress and 
was not governed by the equal protection clause, except as 
that requirement is read into the due process clauses of 
the Fifth Amendment. It was contended that the statute 
was invalid in that it excepted oleomargarine from its pro­
visions. However, the Supreme Court said at page 151:

“ *  *  *  The Fifth Amendment has no equal protec­
tion clause, and even that of the Fourteenth, appli­
cable only to the states, does not compel their legis­
latures to prohibit all like evils or none. A legislature 
may hit at an abuse which it has found, even though 
it has failed to strike at another. [Citing cases] ”

To the same effect is Hughes v. Superior Court of Cali­
fornia, 339 U. S. 460. The appellants were engaged in 
picketing to force an employer to hire a certain proportion 
of Negro employees. They were enjoined by a state court. 
The injunction was upheld by the United States Supreme 
Court on the ground that California policy against em­
ployment because of race was violated. It was alleged that 
the equal protection clause was violated because California 
did not prohibit an employer from having a quota system 
but only prohibited attempted compulsion upon the em­
ployer to adopt the quota system. The Supreme Court 
said at page 468:

“ *  *  *  A State may ‘direct its law against what it 
deems evil as it actually exists without covering the



50

whole field of possible abuses, and it may do so none 
the less that the forbidden act does not differ in kind 
from those that are allowed.’ *  *  * ”

In United States v. Petrillo, 332 U. S. 1, a Federal 
statute prohibited coercion to cause a radio broadcaster to 
hire employees in excess of its needs. It was argued that 
the act violated the due process clause. The Supreme 
Court said at page 8:

“ *  *  *  Secondly, it is argued, the Act violates due 
process because it singles out broadcasting employees 
for regulation while leaving other classes of employ­
ees free to engage in the very practices forbidden to 
radio workers. But it is not within our province to 
say that because Congress has prohibited some prac­
tices within its power to prohibit it must prohibit all 
within its power. *  *

Thus, it can be seen that the exemptions contained 
in Chapter 36 do not violate the equal protection clause. 
Railroad Express Agency v. New York, 336 U. S. 106.

To conclude it is appropriate to quote the following 
language of this Court in N .A .A .C .P. v. Committee, 199 
Va. 665 at page 678:

“ It is, of course, well settled that it is not within 
the functions of the judiciary to inquire into the 
motives which impel the legislature to enact laws. 
11 Am. Jur., Constitutional Law, §141, p. 818 f f . ; 
4 Mich. Jur., Constitutional Law, §55, p. 142, and 
cases there collected; Sonzinsky v. United States, 
300 U. S. 506. 513, 514, 57 S. Ct. 554,81 L. ed. 772.”



51

CONCLUSION

For reasons stated above, it is respectfully submitted 
that the provisions of Chapters 33 and 36 apply to certain 
activities of the plaintiffs and that the said provisions do 
not violate the Fourteenth Amendment to the Constitu­
tion of the United States.

Respectfully submitte,

J o h n  W. K now les
Assistant Attorney General 
Supreme Court Building 
Richmond, Virginia

D avid J . M ays
FIen r y  T. W ic k h a m  

State-Planters Bank Building 
Richmond, Virginia

Counsel for Appellees

D ated: March 10,1960



A P P E N D I X



A P P E N D I X  I

C h a pter  33

A C T S  O F T H E  G E N E R A L  A S S E M B L Y  
O F V IR G IN IA

E xtra  S e ssio n , 1956

(Sections 54-74, 54-78 and 54-79 of the 
Code of Virginia, as amended)

An Act to amend and reenact §§54-74, 54-78 and 54-79 
of the Code of Virginia, relating, respectively, to pro­
cedure fo r  suspension and revocation of licenses of 
attorneys at law, and to running and capping.

Approved September 29, 1956

Be it enacted by the General Assembly of V irgin ia:

1. That §§54-74, 54-78 and 54-79 of the Code of V ir­
ginia be amended and reenacted as follows:

§ 54-74. (1 ) Issurance of rule.— If the Supreme Court 
of Appeals, or any court of record of this State, observes, 
or if complaint, verified by affidavit, be made by any per­
son to such court of any malpractice or of any unlawful 
or dishonest or unworthy or corrupt or unprofessional 
conduct on the part of any attorney, or that any person 
practicing law is not duly licensed to practice in this State, 
such court shall, if it deems the case a proper one for such 
action, issue a rule against such attorney or other person 
to show cause why his license to practice law shall not be 
revoked or suspended.

(2 ) Judges hearing case.— At the time such rule is 
issued the court issuing the same shall certify the fact of



App. 2

such issuance and the time and place of the hearing 
thereon, to the chief justice of the Supreme Court of 
Appeals, who shall designate two judges, other than the 
judge of the court issuing the rule, of circuit courts or 
courts of record of cities of the first class to hear and 
decide the case in conjunction with the judge issuing the 
rule, which such two judges shall receive as compensation 
ten dollars per day and necessary expenses while actually 
engaged in the performance of their duties, to be paid 
out of the treasury of the county or city in which such 
court is held.

(3 ) Duty of Commonwealth’s Attorney.— It shall be 
the duty of the attorney for the Commonwealth for the 
county or city in which such case is pending to appear at 
the hearing and prosecute the case.

(4 ) Action of court.— Upon the hearing, if the defend­
ant be found guilty by the court, his license to practice law 
in this State shall be revoked, or suspended for such time 
as the court may prescribe; provided, that the court, in 
lieu of revocation or suspension, may, in its discretion, 
reprimand such attorney.

(5 ) Appeal.— The person or persons making the com­
plaint or the defendant, may, as of right, appeal from 
the judgment of the court to the Supreme Court of 
Appeals by petition based upon a true transcript of the 
record, which shall be made up and certified as in actions 
at law.

(6 ) “ Any malpractice, or any unlawful or dishonest or 
unworthy or corrupt or unprofessional conduct” , as used 
in this section, shall be construed to include the improper 
solicitation of any legal or professional business or ern-



App. 3

ployment, either directly or indirectly, or the acceptance 
of employment, retainer, compensation or costs from any 
person, partnership, corporation, organization or associ­
ation with knowledge that such person, partnership, cor­
poration, Organization or association has violated any 
provision of Article 7 of this chapter, or the failure, with­
out sufficient cause, within a reasonable time after de­
mand, of any attorney at law, to pay over and deliver to 
the person entitled thereto, any money, security or other 
property, which has come into his hands as such attorney; 
provided, however, that nothing contained in this Article 
shall he construed to in any way prohibit any attorney 
from accepting employment to defend any person, part­
nership, corporation, organization or association accused 
of violating the provisions of Article 7 of this chapter.

(7 ) Representation by counsel.— In any proceedings to 
revoke or suspend the license of an attorney under this or 
the preceding section, the defendant shall be entitled to 
representation by counsel.

§54-78. As used in this article:

(1 ) A “ runner” or capper” is any person, corporation, 
partnership or association acting in any manner or in any 
capacity as an agent for an attorney at law within this 
State or for any person, partnership, corporation, organi­
zation or association which employs, retains or compen- 
states any attorney at law in connection with any judicial 
proceeding in which such person, partnership, corporation, 
organization or association is not a party and in which it 
has no pecuniary right or liability, in the solicitation or 
procurement of business for such attorney at law *  or for  
such person, partnership, corporation, organization or a s­



App. 4

sociation in connection with any judicial proceedings for  
which such attorney or such person, partnership, corpo­
ration, organization or association is employed, retained 
or compensated.

The fact that any person, partnership, corporation, or­
ganization or association is a  party to any judicial pro­
ceeding shall not authorize any runner or capper to solicit 
or procure business fo r such person, partnership, corpo­
ration, organization or association, or any attorney at law 
employed, retained or compensated by such person, part­
nership, corporation, organization or association.

(2 ) An “agent” is one who represents another in deal­
ing with a third person or persons.

§ 54-79. It shall be unlawful for any person, corpora­
tion, partnership or association to act as a runner or cap­
per *  as defined in § 54-78 to solicit any business for *  an 
attorney at law or such person, partnership, corporation, 
organization or association, in and about the State prisons, 
county jails, city jails, city prisons, or other places of 
detention of persons, city receiving hospitals, city and 
county receiving hospitals, county hospitals, police courts, 
*  county courts, municipal courts, *  courts of record, 
or in any public institution or in any public place or upon 
any public street or highway or in and about private 
hospitals, sanitariums or in and about any private insti­
tution or upon private property of any character what­
soever.

2. An emergency exists and this act is in force from its 
passage.



App. 5

A P P E N D I X  I I

C h a pter  36

A C T S  O F T H E  G E N E R A L  A S S E M B L Y  
O F V IR G IN IA

E xtra  S e ssio n , 1956

(Sections 18-349.31 to 18-349.37, inclusive, 
of the Code of Virginia as amended)

An Act to make it unlawful for any person to induce an­
other person to commence or prosecute proceedings in 
any court or before any board or administrative agency 
under certain conditions: to provide for the filing of 
affidavits: and to provide penalties for violations of this 
act.

Approved September 29, 1956 

Be it enacted by the General Assembly of V irgin ia:

1. §1. (a )  It shall be unlawful for any person not hav­
ing a direct interest in the proceedings, either before or 
after proceedings commenced:

to promise, give or offer, or to conspire or agree to 
promise, give or offer, or

to receive or accept, or to agree or conspire to receive 
or accept, or

to solicit, request or donate,
Any money, bank note, bank check, chose in action, 

personal services or any other personal or real property, 
or any other thing of value, or any other assistance as an 
inducement to any person to commence or to prosecute 
further any original proceeding in any court of this State,



App. 6

or before any board or administrative agency within the 
said State, or in any United States court located within 
the said State against the Commonwealth of Virginia, any 
department, agency or political subdivision thereof, or any 
person acting as an officer or employee for either or both 
or any of the foregoing; provided, however, this section 
shall not be construed to prohibit the constitutional right 
of regular employment of any attorney at law, for either 
a fixed fee or upon a contingent basis, to represent such 
person, firm, partnership, corporation, group, organiza­
tion or association before any court or board or adminis­
trative agency.

(b ) It shall be unlawful for any person, not related by 
blood or marriage or who does not occupy a position of 
trust or a position in loco parentis to one who becomes the 
plaintiff in a suit or action, who has no direct interest in 
the subject matter of the proceeding and whose profes­
sional advice has not been sought in accordance with the 
Virginia canons of legal ethics, to advise, counsel or 
otherwise instigate the bringing of a suit or action against 
the Commonwealth of Virginia, any department, agency 
or political subdivision thereof, or any person acting as an 
officer or employee for either or both or any of the fore­
going.

(c) A s used in this act, “person” includes person, firm, 
partnership, corporation, organization or association; “ di­
rect interest” means a personal right or a pecuniary right 
or liability.

(d ) Any person violating any of the provisions of § 1 
of this act shall be guilty of a misdemeanor and, upon con­



App. 7

viction thereof, shall be fined not more than one thousand 
dollars or confined in jail for not more than one year, or 
both.

§2. Every person who commences or prosecutes or 
assists in the commencement or prosecution of any pro­
ceeding against one of the parties set forth in paragraph 
(a )  of § 1 in any court in this State, or before any board 
or administrative agency therein, or who may take an 
appeal from any such rule, order or judgment thereof, 
shall, on motion made by any of the parties to such pro­
ceedings or by the court or board or administrative agency 
in which such proceeding is pending, file with such court 
or agency, as a condition precedent to the further prose­
cution of such proceeding, the following affidavit:

I, (name of individual or corporation, organization or 
association, firm or partnership), petitioner (or plaintiff, 
appellant or whatever party he may be, or an officer there­
of if a corporation, organization or association, firm or 
partnership) in this matter, do hereby swear (or affirm) 
that I have (or the corporation, organization or associ­
ation, firm or partnership has) neither received, nor con­
spired to receive, nor have I (nor has the corporation, 
organization or association, firm or partnership), been 
promised or tendered any valuable consideration or assist­
ance not permitted by law as an inducement to the com­
mencement or further prosecution of the proceedings in 
this matter, nor has the same been instigated in violation 
of law.

(Signature of Affiant)

Affiant



App. 8

Sworn to and subscribed before me on this, the (date) 
day of (month), 19 (year).

(Signature of Official Authorized to 
Administer Oaths)

(Title of Official)

In the case of any firm, corporation, group, organiza­
tion, partnership or association required to make the above 
affidavit, such affidavit shall be made by the person having 
custody and control of the books and records of such firm, 
corporation, group, organization or association and one 
of the principal officers thereof.

Forms for such affidavit shall be furnished by the clerk 
of court, and shall have printed at the bottom thereof the 
text of §4 of this act, under the heading “ P E N A L T Y ” .

§3. Every attorney representing any person, firm, 
partnership, corporation, group, organization or associ­
ation in any proceeding in any court or before any board 
or administrative agency in this State or who may take 
an appeal from any rule, order or judgment thereof, shall, 
on motion made by any of the parties to such proceeding 
or by the court or board or agency in which such proceed­
ing is pending, file, as a condition precedent to the further 
prosecution of such proceeding, the following affidavit:

I, (nam e), attorney representing (name of party), peti­
tioner (or plaintiff, appellant or whatever party he may 
be) in this matter, do hereby swear (or affirm) that 
neither I nor, to the best of my knowledge and belief, any 
other person, firm partnership, corporation, group, organ­
ization or association has promised, given or offered, or 
conspired to promise, give or offer, or solicited, received



App. 9

or accepted any valuable consideration or any assistance 
not permitted by law to said (name of party) as an induce­
ment to said (name of party) to the commencement or 
further prosecution of the proceedings herein, nor has the 
same been instigated in violation of law.

(Signature of Affiant)

Affiant

Sworn to and subscribed before me on this, the (date) 
day of (month), 19 (year).

( Signature of Official Authorized to 
Administer Oaths)

(Title of Official)

Forms for such affidavit shall be furnished by the clerk 
of court, and shall have printed at the bottom thereof the 
text of §4 of this act, under the heading “ P E N A L T Y ” .

§ 4. Every person or attorney who shall file a false affi­
davit shall be guilty of perjury and shall be punished as 
provided by law. Every attorney who shall file a false 
affidavit, or who shall violate any other provision of this 
act, upon final conviction thereof, shall also be disbarred 
by order of the court in which convicted. Any attorney 
who shall file a false affidavit or violate any other provi­
sion of this act, and who is not a member of the Virginia 
State Bar, shall, in addition to the other penalties pro­
vided by this act, be forever barred from practicing before 
any court or board or administrative agency of this State.

§5. No person shall be excused from attending or 
testifying or producing evidence of any kind before a



App. 10

grand jury or before any court, or in any cause or pro­
ceeding, criminal or otherwise, based upon or growing 
out of any alleged violation of the provisions of this act 
on the ground or for the reason that the testimony or evi­
dence, documentary or otherwise, required of him may 
tend to incriminate him or subject him to a penalty or 
forfeiture. But no person shall be prosecuted or subject 
to any penalty or forfeiture for, or on account of, any 
transaction, matter or thing, concerning which he may be 
required to testify or produce evidence, documentary or 
otherwise before the grand jury or court or in any cause 
or proceeding brought by the Commonwealth; provided, 
that no person so testifying shall be exempt from prose­
cution or punishment for perjury in so testifying. Any 
person who shall neglect or refuse to so attend or testify, 
or to answer any lawful inquiry, or to produce books or 
other documentary evidence, if in his power to do so, shall 
be guilty of a misdemeanor and, upon conviction thereof, 
shall be punished by a fine of not less than one hundred 
dollars nor more than one thousand dollars, or by im­
prisonment for not more than one hundred eighty days, 
or by both such fine and imprisonment.

§6. This act shall not be applicable to attorneys who 
are parties to contingent fee contracts with their clients 
where the attorney does not protect the client from pay­
ment of the costs and expense of litigation, nor shall this 
act apply to a mandamus proceeding against the State 
Comptroller, nor shall this act apply to any matter involv­
ing zoning, annexation, bond issues, or the holding or 
results of any election or referendum, nor shall this act 
apply to suits pertaining to or affecting possession of or



A p p .l l

title to real or personal property, regardless of ownership, 
nor shall this act apply to suits involving the legality of 
assessment or collection of taxes or the rates thereof, nor 
shall this act apply to suits involving rates or charges or 
services by common carriers or public utilities, nor shall 
this act apply to criminal prosecutions, nor to the payment 
of attorneys by legal aid societies approved by the V ir­
ginia State Bar, nor to proceedings to abate nuisances. 
Nothing herein shall be construed to be in derogation of 
the constitutional right of real parties in interest to employ 
counsel or to prosecute any available legal remedy under 
the laws of this State. The provisions hereof shall not 
affect the right of a lawyer in good faith to advance 
expenses as a matter of convenience but subject to reim­
bursement.

§7. Nothing in this act shall affect the provisions of 
Chapters 670 of the Acts of Assembly of 1956.

2. An emergency exists and this act is in force from its 
passage.



App. 12

A P P E N D I X  I I I

STATEMENT OF LEGAL FEES AND EXPENSES 
PAID OUT IN 1956, 1957 & 1958

Date Amount Paid to Description
1956

July 28 $ 28.13 Victor J. Ashe Exp. Norfolk School Case

July 28 200.00 Oliver W. Hill il Advance expenses to 
Charlottesville & 
Arlington School Cases

1957
June 5 267.66 Oliver W. Hill Travel re Newport News 

School Case (Ashe, 
Madison, Thompson, 
Walker, Hill & Robinson)

June 6 495.75 Oliver W. Hill t( Lawyers Publishing Co. and 
Holay (court reporter)

June 17 685.37 Victor J. Ashe $170 Exp. Norfolk School Case

June 17 494.00 J. Hugo Madison 28 Exp. Norfolk School Case

Sept 25 268.20 Lawyers Publishing Co. Exp. Prince Edward School Case

Dec. 30 750.00 Philip S. Walker Fees Newport News School Case

Dec. 30 750.00 W. Hale Thompson “ Newport News School Case

Dec. 30 212.62 W. Hale Thompson it Expenses re Newport News 
School Case

Dec. 30 1100.00 Oliver W. Hill Fee Paid on Account Newport 
News & Norfolk School 
Cases

1958
May 12 750.00 Philip S. Walker a Newport News School Case

May 12 750.00 W. Hale Thompson u Newport News School Case

May 12 685.38 Victor T. Ashe “ Norfolk School Case

May 12 494.00 J. Hugo Madison “ Norfolk School Case

May 15 47.50 Mrs. Evalyn Shaed Exp. Clerical services re 
School Cases



App. 13

Date

June 30

Amount

2000.00

Paid to

Oliver W. Hill
Description

Paid on account for School 
Cases per Statement 
(5/9/58)

July 31 500.00 Oliver W. Hill Fee School Cases, paid on 
account

Sept 10 700.00 Oliver W. Hill it School Cases, paid on 
account

Sept 10 500.00 Victor J. Ashe it Norfolk School Case, on 
account

Sept 10 500.00 J. Hugo Madison it Norfolk School Case, on 
account

Sept 26 200.00 

$12,378.61

Oliver W. Hill it School Cases, Paid on 
account



App. 14

A P P E N D I X  I V

Approximate
Family Real Estate Attorney’s Fees

Witness Income Owned and Expenses

James W. Harris $5,000 $ ..... No bill submitted
618 33rd St. 
Newport News, Va.

3.500 (w)

8.500

Would pay his share.
Did not know of NAACP 

sponsorship.

Dr. E. C. Downing 
1229 27th St. 
Newport News, Va.

12-16,000 30,800 Expects to receive bill.

Louis Thompson 
829 21st St. 
Newport News, Va.

5,000 15,000 ($2, or 
$3,000 liens)

Expects to pay.

David W. Morris 
1818 Marshall Ave. 
Newport News, Va.

50,000 ($20,000 
in liens)

Has not been billed.
Did not know of NAACP 

sponsorship.

Thomas W. Selden 
3100 Madison Ave. 
Newport News, Va.

9,000 21,000 Expects NAACP to pay.

Marie E. Patterson 
751 26th St. 
Newport News, Va.

13-17,000 Doesn’t expect to pay.

Jerry C. Fauntleroy 
3303 Roanoke Ave. 
Newport News, Va.

8,100 Agreed to pay.

James E. Manson 
3808 Marshall Ave. 
Newport News, Va.

4-5,000 30,000 Has paid nothing. No 
personal contact with 
attorney Thompson.

Arthur L. Price 
3012 Marshall Ave. 
Newport News, Va.

6,000 12,000 Expects NAACP to pay 
because he is a member



App. 15

Witness

Approximate
Family
Income

Real Estate 
Owned

Attorney’s Fees 
and Expenses

Barbara S. Marx 4,000 
6897 N. Wash’ton Blvd. 
Arlington, Va.

30,000 Would have brought suit 
even if NAACP did not 
agree to finance it.

E. Leslie Hamm 
1900 N. Camden St. 
Arlington, Va.

5.000
3.000 (w)

8.000

18,000 Doesn’t know who is to pay, 
but will pay if asked.

Edward D. Strother 
2819 S. 18th St. 
Arlington, Va.

8,000

George L. Nelson 
2005 N. Camden St. 
Arlington, Va.

5,000 Didn’t know about NAACP 
sponsorship.

Would pay if bill rendered.

Audrey T. Newman 
5554 Lee Highway 
Arlington, Va.

4,000 (h) Expects NAACP to pay.

Josie F. Pravad She and husband 
2900 S. 20th St. work for Federal 
Arlington, Va. Gov’t. (She is a 

a GS-4)

Understood she could be 
represented by NAACP and 
is being so represented.

Ruth M. Rout 
3011 17th Road 
Arlington, Va.

3,400 
3,500 (h ,

6,900

NAACP usually pays.

Harry Strother 3,800 
2102 N. Dinwiddie St. 
Arlington, Va.

NAACP lawyers said they 
would represent him.

Dr. Harold M. Johnson .....
2901 Lexington St.
Arlington, Va.

87,650



App. 16

Witness

Approximate
Family Real Estate 
Income Owned

Attorney’s Fees 
and Expenses

Alex M. Davis 
607 10/a St., NW 
Charlottesville, Va.

3,500

Eugene Williams 
620 Ridge St. 
Charlottesville, Va.

4,000 Uses NAACP lawyers and 
agreed to pay if NAACP 
legally could not.

Dr. Marshall T. Garrett 7,000 50,000 
320 W. Main St. 4,000 (w)
Charlottesville, Va. --------

11,000

Would pay if necessary.

George R. Ferguson 
702 Ridge St. 
Charlottesville, Va.

1,800 
3,600 (w)

5,400

NAACP would pay if 
legally possible

William M. Smith 
1709 Preston Ave. 
Charlottesville, Va.

5,000 NAACP members employed 
NAACP lawyers. Will pay 
his share if necessary.

J. Russell Arnett 
Route 5, Box 152 
Charlottesville, Va.

6,000 Agreed to pay if NAACP 
could not legally do so.

Moses S. Maupin 
915 Henry Ave. 
Charlottesville, Va.

NAACP would pay if it 
legally could. Had no com­
munication with attorney 
since suit was filed.

(h) Husband.
(w) Wife.



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