United Mine Workers of America, District 12 v. Illinois State Bar Association Motion for Leave to File and Brief Amicus Curiae

    NO. 33

IN THE

©Hurt uf ttjr Stairs
OCTOBER TERM, 1967

U nited Mine W orkers of A merica, D istrict 12
Petitioner

V.

I llinois S tate B ar A ssociation, et al.

ON WRIT OF CERTIORARI TO THE SUPREME 
COURT OF THE STATE OF ILLINOIS

MOTION FOR LEAVE TO FILE A BRIEF AS 
AMICUS CURIAE 

AND
BRIEF FOR THE

AMERICAN FEDERATION OF LABOR 
AND CONGRESS OF INDUSTRIAL ORGANIZATIONS 

AS AMICUS CURIAE

J. A lbert W oll 
General Counsel, AFL-CIO 
R obert C. Mayer 
L aurence Gold

736 Bowen Building 
815 Fifteenth Street, N.W. 
Washington, D.C. 20005

T homas E. H arris
Associate General Counsel, AFL-CIO 

815 Sixteenth Street, N.W. 
Washington, D.C. 20006



INDEX

Motion : ...............................................................

Interest of the AFL-CIO.................
Issue Not Covered in The Petition 
Conclusion .........................................

B rief : ...................................................................

Argument
Conclusion

Page
iii-v

iii
iv
V

1-20
2

20

Citations
Cases:

Brotherhood of Railroad Trainmen v. Virginia,
377 U.S. 1 (1964) .................... iii-iv, 3, 4, 5-6, 7, 8,17,19

Brotvn v. Board of Education, 347 II.S. 483 (1954) 2
Eastern R.R. Conference v. Noerr Motor Freight,

365 U.S. 127 (1961) ................................................  7
N.A.A.C.P. V. Button, 371 U.S. 415 (1963)

iv, 2, 3, 4-5, 6, 7, 8-9,17,19
Valentine v. Chrestensen, 316 U.S. 52 (1942) ....... 7

Miscellaneous :
Bodle, Group Legal Services: The Case for BRT, 12 

U.C.L.A. L. Rev. 306 (1965) .....................................  3
J. Carlin and J. Howard, Legal Representation and

Class Justice, 12 U.C.L.A. L. Rev. 381 (1965) 10,11-12
E. Cheatham, A Lawyer When Needed: Legal Ser­

vices for the Middle Classes, 63 Colum. L. Rev.
973 (1963) ...................................................................  10

C. Clark and E. Corstvet, The Lawyer and the Pub­
lic: An A.A.L.S. Survey, 47 Yale L. J. 1272 (1938) 10

Committee Report on Group Legal Services, 39 Cal.
S. B.J. 639 (1964) ..................................... iv, 2,10-11,15-16



Page
A. Cox, Poverty and the Legal Profession, 54 111.

B.J. 12 (1965) ..............................................................  13-14
Group Legal Services, 79 Harv. L. Eev. 416 (1965) .... 17-18
S. Horovitz, Workmen’s Compensation (1946) ......... 7
Iowa State Bar Association, Lay Opinion of Iowa 

Lawyers (1949) ..........................................................  10
E. Koos, The Family and the Law (1949) ..................  10
K. Llewellyn, The Bar’s Troubles, and Poidtices—

And Curesf, 5 Law and Contemp. Prob. 104 (1938) 10
Neighborhood Law Offices: The Neio Wave in Legal

Services, 80 Harv. L. Eev. 805 (1967) ..................  15
New York Times, April 10, 1965, p. 31, col. 2 ..............  iv
Petition for Eehearing filed by the American Bar 

Association in Brotherhood of Railroad Trainmen 
V Virginia, 377 U.S. 1 (1964) .....................................  iv, 15

Practice of Law by Lay Organizations Providing the 
Services of Attorneys, 72 Harv. L. Eev. 1334 (1959) 17

M. Schwartz, Foreword: Group Legal Services in 
Perspective, 12 U.C.L.A. L. Eev. 279 (1965) .... 10,14,15

Supreme Court of the United States Eule 42..............  iii
Washington Post, August 7, 1967, p. 1, col. 1, p. 11, 

col. 1 ..........................................................................15,18-19
Washington Post, August 8, 1967, p. 6, col. 6 ..............  11
H. Weihofen, Practice of Law by Non-Pecuniary Cor­

porations: A  Social Utility, 2 U. Chi. L. Eev.
119 (1934) ....................................................................  17

E. Wright, An Evaluation of the Canons of Profes­
sional Ethics, 21 The Eecord 581 (1966) ..................  p o

P. Zimroth, Group Legal Services and the Constitu­
tion, 76 Yale L.J. 966 (1967) .....................................  7,18

ii



IN THE

Qlflurt rtf tijr InttrJt î tatrs
OCTOBER TERM, 1967

NO. 33

U nited Mine  W oekbes of A meeioa, D isteict 12
Petitioner

V.

I llinois S tate B ae Association, et al.

ON WRIT OF CERTIORARI TO THE SUPREME 
COURT OF THE STATE OF ILLINOIS

MOTION FOR LEAVE TO FILE A BRIEF AS 
AMICUS CURIAE

The American Federation of Labor and Congress of In­
dustrial Organizations (AFL-CIO) hereby respectfully 
moves for leave to file a brief amicus curias in the instant 
case in support of the position of the petitioner, as pro­
vided for in Buie 42 of the Buies of this Court. The con­
sent of counsel for the petitioner has been obtained. Counsel 
for respondent has refused his consent.

INTEREST OF THE AFL-CIO

The AFL-CIO is a federation of one hundred twenty-nine 
affiliated labor organizations with a total membership of 
approximately thirteen million five hundred thousand. The 
question presented by the instant case is whether union 
members may further their undoubted constitutional right 
to associate for the purpose of preserving and enforcing 
their legal rights, Brotherhood of Railroad Trainmen v

III



Virginia, 377 U. S. 1 (1964), by voting to set up a plan 
whereby funds in the union treasury may be used to pay 
an attorney to advise and represent sucb of tbeir number 
as need bis services. As this case and the Trainmen’s Case 
both indicate, union members, affiliated with every segment 
of the labor movement, have traditionally been anxious to 
utilize their labor organizations as a base upon which to 
build improved methods of obtaining legal services, see, 
e.g.. Committee Report on Group Legal Services, 39 Cal. 
S.B.J. 639, 670-675 (1964) (survey of union legal assistance 
plans in California); New York Times, April 10,1965, p. 31, 
col. 2 (discussion of legal aid clinic established by the New 
York Hotel Trades Council). Moreover, as both these oases 
also indicate, these efforts have met widespread resistance 
from both State Bar Associations and the American Bar As­
sociation, see the Petition for Rehearing in the Trainmen’s 
Case filed by the ABA and 44 State Bar Associations. The 
B ar’s efforts have naturally tended to limit the effective­
ness and the growth of these union group legal service 
programs.

The APL-CIO, as spokesman for the majority of Amer­
ican union members has a profound interest in seeing that 
the arbitrary and unwise restriction on the access of work­
ing men to effective counsel sought by the Bar and granted 
by the court below is set aside. For this reason it seeks 
leave to file a brief as amicus curiae in order to acquaint the 
Court with the views of the labor movement as a whole as 
to why the decision of the court below should be reversed.

ISSUE NOT COVERED IN THE PETITION

The main portion of the petitioner’s brief in the instant 
case is devoted to demonstrating that the Illinois Supreme 
Court’s determination of the constitutional question pre­
sented is erroneous and in conflict with this Court’s deci­
sions in the Trainmen’s Case, and N.A.A.C.P. v Button, 
371 H.S. 415 (1963). I t deals only in passing with the seri-

IV



ous consequences that the decision below will have on work­
ers ’ ability to secure truly adequate legal representation. 
We believe that recent legal and sociological commentary 
demonstrates beyond any reasonable doubt that the deci­
sion below will have an extremely deleterious effect on their 
ability to do so, and that it will be helpful to the Court to 
have the reasons for this belief developed. The accompany­
ing brief amicus curiae is therefore primarily addressed 
to that task.

CONCLUSION

For the above stated reasons we respectfully urge the 
Court to grant this motion for leave to file the accompany­
ing brief amicus curiae in the instant case in support of 
the position of the petitioner, just as it granted the AFL- 
CIO’s motion for leave to file a brief as amicus curiae in 
support of the petition for a writ of certiorari, 386 U.S. 941 
(1967).

Bespectfully submitted,
J . AxiBeet W oll 
General Counsel, AFL-CIO 
R obeet C. Mayek 
Laueeuob G-old 

736 Bowen Building 
815 Fifteenth Street, N.W. 
Washington, D.C. 20005

T homas E. H abbis
Associate General Counsel, AFL-CIO 

815 Sixteenth Street, N.W. 
Washington, D.C. 20006

August 1967



IN THE

Olflitrt flf ^tat^0
OCTOBER TERM, 1967

NO. 33

U nited Mine W oekebs of A meeica, D istrict 12
Petitioner

V.

I llinois S tate B ar A ssociation, et al.

ON PETITION FOR A WRIT OF CERTIORARI TO THE 
SUPREME COURT OF THE STATE OF ILLINOIS

BRIEF FOR THE
AMERICAN FEDERATION OF LABOR 

AND CONGRESS OF INDUSTRIAL ORGANIZATIONS 
AS AMICUS CURIAE

This brief amicus curiae is filed by the American Fed­
eration of Labor and Congress of Industrial Organizations 
(AFL-CIO), contingent upon the Court’s granting the fore­
going motion for leave to file a brief as amicus curiae.

The opinion below, jurisdiction, questions presented, 
constitutional and statutory provisions, and canons of 
ethics involved are set out in Appendix A, pp. la-2a, to peti­
tioner’s brief.

The interest of the AFL-CIO is set out on pp. iii-iv of 
the foregoing motion for leave to file a brief as amicus 
curiae.



ARGUMENT
PETITIONER’S GROUP LEGAL SERVICE PLAN IS
PROTECTED BY THE FIRST AND FOURTEENTH 

AMENDMENTS TO THE CONSTITUTION 
OF THE UNITED STATES

1. In 1963 this Court found that a group legal service 
plan^ instituted by the National Association for the Ad­
vancement of Colored People (N.AA.C.P.) was entitled to 
the protection of the F irst and Fourteenth Amendments to 
the Constitution of the United States, N.A.A.C.P. v Button, 
371 U.S. 415 (1963). That plan had as its principal aim 
the “ financing [of] litigation aimed at ending racial segre­
gation in the public schools,” 371 U.S. at 420. In other 
words, at the time it was reviewed by this Court, the plan’s 
principal aim was to insure that the rule of law announced 
in Brown v Board of Education, 347 U.S. 483 (1954) became 
a living reality. The plan’s lawyers were elected at the or­
ganization’s convention and were compensated for their 
work on a per diem basis by the N.A.A.C.P., which was their 
sole source of remuneration for working on a case, 371 U.S. 
at 420. If  potential clients came to the N.A.A.C.P., the chair­
man of the legal staff and the President of the local 
N.A.A.C.P. Conference would decide whether legal assis­
tance should be given. Id. at 421. In addition, at the irdtia- 
tive of local N.A.A.C.P. branches, memibers of the legal staff 
would speak to local meetings about the legal steps needed 
to bring about desegregation. They carried with them 
printed forms for authorizing the N.A.A.C.P. to represent

1 Group legal service plans have been defined as plans in which ‘ ‘ Legal 
services [are] performed by an attorney for a group of individuals who have 
a common problem or problems, or who have joined together as a means of 
best bargaining for a predetermined position, or who have voluntarily formed, 
or become members of an association with the aim that such association shall 
perform a service to its members in a particular field or activity, or through 
common interests it appears that the organization can gain a benefit to the 
members as a whole. ’ ’ Committee Report on Group Legal Services, 39 Cal. 
S.B.J. 639, 661 (1964).



the signees in legal proceedings to achieve that end, Ihid. 
The N.A.A.C.P. set down basic guidelines relating to litiga­
tion: for example, that suits seeking separate but equal 
facilities would not be accepted; but otherwise “ the actual 
conduct of assisted litigation [was] under the control of 
the attorney,”  Id. at 420-421.

In 1964 this Court, explicitly following and relying on 
Button, held that a group legal service plan instituted by 
the Brotherhood of Eailroad Trainmen, AFL-CIO, was like­
wise entitled to the protection of the F irst and Fourteenth 
Amendments, Brotherhood of Railroad Trainmen v Vir­
ginia, 377 U,S. 1 (1964). The Trainmen and the other rail­
road brotherhoods had supported passage of the Federal 
Employee’s Liability Act, 45 U.S.C. Sec. 51-60, and the 
Trainmen set up a Legal Aid Department to insure that the 
benefits of that law would not be eroded by “ claims ad­
justers eager to gain a quick and cheap settlement”  or by 
“ lawyers either not competent to try  these lawsuits . . .  or 
too willing to settle a case for a quick dollar,” 377 IJ.S. at 
3-4. Under the plan the Trainmen, through the secretary of 
the union’s local lodge, advised each injured member not to 
settle his case “ without first seeing a lawyer, and that in the 
Brotherhood’s judgment the best lawyer to consult was the 
counsel selected by it for that area,”  7d. at 4. The union also 
provided an investigatory staff at its own expense. Id. at 4, 
n. 8. Moreover, because many members followed the union’s 
advice, the lawyers it recommended were often able to ac­
cept a lower fee than wms normally charged in the area for 
handling accident claims, Bodle, Group Legal Services: 
The Case for BRT, 12 U.C.L.A. L.Rev. 306, 311-312 (1965).

In 1966, in the instant case, the Supreme Court of the 
State of Illinois refused to follow the teaching of Button 
and the Trainmen’s Case, and held that a group legal ser­
vice plan instituted by the United Mine Workers, District 
12, a labor union, was not entitled to the protection of the



F irst and Fonrteentli Amendments (K. 94-105).^ In  1913 
the District 12 Convention had established a legal depart­
ment to deal with the problems of members injured while 
at work since their “ interests were being juggled and even 
where not, they were required to pay forty to fifty percent 
of the amounts recovered in damage suits for attorney’s 
fees” (R. 14). Under this plan a licensed attorney is re­
tained by the Executive Board to represent those of the 
members who need and desire his services in relation to 
workmen’s compensation matters (R. 17, 31). The members 
are advised that an attorney is available to handle their 
claims (R. 15). The attorney’s sole compensation for his 
services is an annual salary plus actual hotel and trans­
portation expenses and secretarial assistance^ (R. 14-15, 
19-20). Any recovery secured goes to the injured worker 
in its entirety (R. 16, 46). Members are free, without fear 
of union discipline, to by-pass the plan and secure an out­
side attorney (R. 14, 19-20). The attorney and the injured 
members he represents have sole control of the litigation, 
including the decision whether to settle short of trial. Dis­
trict 12 has made it clear that as to these matters the at­
torney would not receive “ instructions or direction and 
[would] have no interference from the District, nor from 
any officer, and your obligation and status will be to and 
with only the several persons you represent.”  (R. 20, 45)

2. We submit that District 12’s group legal service plan 
is constitutionally protected in all respects under the prin­
ciples laid down in Button and the Trainmen’s Case.

The basic rule is set out in Button, 371 U.S. at 428, 429, 
430:

“ . . . petitioner claims that the [Virginia law] 
infringes the right of the NAAOP and its members 
and lawyers to associate for the purpose of assist­
ing persons who seek legal redress for infringe-

2 “  E ”  references are to the record as printed for this Court.



ments of their constitutionally guaranteed and 
other rights. . . . ”

* « #
“ . . . abstract discussion is not the only species of 
communication which the Constitution protects; 
the First Amendment also protects vigorous ad­
vocacy, certainly of lawful ends, against govern­
mental intrusion. . . .  In the context of NAACP 
objectives, litigation is not a technique of resolving 
private differences; it is a means for achieving the 
lawful objectives of equality of treatment by all 
government, federal, state and local, for the mem­
bers of the Negro community in this country. I t is 
thus a form of political expression.. . . ”

“We need not, in order to find constitutional pro­
tection for the kind of cooperative, organizational 
activity disclosed by this record, whereby Negroes 
seek through lawful means to achieve legitimate 
political ends, subsume such activity under a nar­
row, literal conception of freedom of speech, peti­
tion or assembly. For there is no longer any doubt 
that the First and Fourteenth Amendments protect 
certain forms of orderly group activity. . . . ” (em­
phasis added)

This Court has made it perfectly clear that this pro­
tection is not limited to political expression in any narrow 
sense of that term, and that it includes group legal action 
taken to secure or effectuate legal rights of a non-con­
stitutional dimension which are of value to the entire 
group. In  the Trainmen’s Case it stated, 377 U.S. at 7, 8:

‘ ‘A State could not, by invoking the power to regu­
late the professional conduct of attorneys, infringe 
in any way the right of individuals and the public 
to be fairly represented in lawsuits authorized by 
Congress to effectuate a basic public interest. Lay­
men cannot be expected to know how to protect 
their rights when dealing with practices and care­
fully counseled adversaries, cf. Gideon v Wain-



Wright, 372 US 335. . . . and for them to associate 
together to help one another to preserve and en­
force rights granted them under federal laws can­
not be condemned as a threat to legal ethics. . . . ”

# # #
“ Only last term we had occasion to consider an 
earlier attempt by Virginia to enjoin the National 
Association for the Advancement of Colored People 
from advising prospective litigants to seek the as­
sistance of particular attorneys. In fact, in that 
case, unlike this one, the attorneys were actually 
employed by the association which recommended 
them, and recommendations were made even to 
nonmembers. NAACP v Button, supra. . . . ”

* # *
“ . . .  The Brotherhood’s activities fall just as clear­
ly within the protection of the First Amendment.
And the Constitution protects the associational 
rights of the members of the union precisely as it 
does those of the NAACP.” (emphasis added) ®

We do not see how any other conclusion could have been 
reached. Litigation by the N.A.A.C.P. to secure the aboli­
tion of legal rules mandating segregation of the races in 
schools is clearly a form of political expression. I t is just 
as clear, as the Court recognized in Button, that litigation 
designed to implement that goal, after it has become the 
law of the land—in other words to insure that the law is an 
operative reality and not a dead letter—is a form of politi­
cal expression. Great moral causes, however, are not the 
limits of politics. Politics in its most normal sense con­
cerns rules which govern the allocation of the society’s re-

3 Indeed, the Court, in the Trainmen’s Case, 377 tT.S. at 7, in language 
which should have guided the court below, since it precisely governs the situa­
tion presented in the instant case, added:

“ . . . It is interesting to note that in Great Britain unions do not 
simply recommend lawyers to members in need of advice; they 
retain counsel, paid by the union, to represent members in personh 
lawsuits, a practice similar to that which we upheld in NAACP v. 
Button, supra.”



sources between contending parties. Viewed properly the 
question of whether the burden of supporting an injured 
workman should fall on the workman, in some or all in­
stances, or on his employer, or on society generally is a 
political question, see generally S. Horovitz, Workmen’s 
Compensation 2-10 (1946). Thus group action of a peaceful 
nature to convince the general public, the federal or state 
legislatures, or the federal or state courts that a system fol­
lowing the principles of a workman’s compensation plan 
rather than the common law of torts should be the basis 
for settling this question is a form of political expression, 
c/.. Eastern R.R. Conference v Noerr Motor Freight, 
365 U.S. 127, 137-138 (1961). Equally, as the Trainmen’s 
Case recognizes, once the basic struggle has been success­
fully waged, peaceful group efforts to insure that the vic­
tory is not a promise to the ear broken to the hope is also 
a form of political expression. See P. Zimroth, Group Legal 
Services and the Constitution, 76 Yale L.J. 966, 987-991 
(1967).

Naturally this does not mean that a scheme under which 
a private promoter offers workers legal assistance in work­
men’s compensation matters at a five percent contingent 
fee for himself and a ten percent fee for the lawyer in­
volved, in an area where the standard fee is thirty percent, 
is protected by the F irst and Fourteenth Amendments. For 
it is well settled that they do not protect commercial activi­
ties as such, e.g., Valentine v Chrestensen, 316 U.S. 52 
(1942). But it should and does mean that group legal action 
by the workers themselves, in situations where the interests 
of the group and the individuals who comprise it coincide, 
and where the group has no monetary stake in the litiga­
tion, is protected. The touchstone is the purpose of the plan 
in light of the over-all objectives of its sponsors, Rutton, 
371 U.S. at 429.

3. Since it is manifest that associational activity subject 
to the protection of the F irst and Fourteenth Amendments



8

is involved here, the burden of proof that naust he carried 
in order to uphold the decision helow is a heavy one. The 
State must advance a “ substantial regulatory interest, in 
the form of substantive evils flowing from the [inter­
dicted] activities which can justify the broad prohibitions 
which it has imposed, ’ ’ Id. at 444. A showing that the state’s 
action found its roots in the power to regulate the legal pro­
fession is insufficient, for “ a State cannot foreclose the 
exercise of constitutional rights by mere labels, ’ ’ Id. at 429. 
Therefore, state action restricting the use of group legal 
service plans must he justified hy proof tending to show 
that the practice which is enjoined is an “ oppressive, ma­
licious or avaricious use of the legal process for purely 
private gain, ’ ’ Id. at 443, or a “ commercialization of the le­
gal profession which might threaten the moral and ethical 
fabric of the administration of justice,”  Trainmen’s Case, 
377 U.S. at 6. Moreover, this Court’s decision in Button, 
371 U.S. at 441-443yindicates that this burden of proof is not 
met if all that is shown is that the associational activity in 
question takes a form in which the beneficiaries of the plan 
may be said to be acting through a lay intermediary:

“ Objection to the intervention of a lay interme­
diary, who may control litigation or otherwise in­
terfere with the rendering of legal services in a 
confidential relationship, also derives from the 
element of pecuniary gain. Fearful of dangers 
thought to arise from that element, the courts of 
several states have sustained regulations aimed at 
these activities. We intimate no view one way or 
the other as to the merits of those decisions with 
respect to the particular arrangements against 
which they are directed. I t  is enough that the 
superficial resemblance in form between those ar­
rangements and that at bar cannot obscure the 
vital fact that here the entire arrangement employs 
constitutionally privileged means of expression to 
secure constitutionally guaranteed civil rights. 
There has been no showing of a serious danger here



of professionally reprehensible conflicts of interest 
which rules against solicitation frequently seek to 
prevent. This is so partly because no monetary 
stakes are involved, and so there is no danger that 
the attorney will desert or subvert the paramount 
interests of his client to enrich himself or an out­
side sponsor. And the aims and interests of NAA 
CP have not been shown to conflict with those of 
its members and nonmember Negro litigants; com­
pare National Asso. for Advancement of Colored 
People V Alabama, 347 US 449, 459. . . . ‘ [the 
NAACP] and its members are in every practical 
sense identical. The Association . . .  is but the 
medium through which its individual members seek 
to make more effective the expression of their own 
views ’ ’

In the instant case the heavy burden of proof necessary 
to sustain the restrictive ruling of the court below has 
not, and could not, be carried.

The strength of the case for group legal service plans 
which embody a cost spreading principle appears to us to 
be overwhelming. First, it is now beyond dispute, by reason 
of the work of distinguished scholars over the past thirty 
years that in our rapidly changing complex, interdepend­
ent urban society, working men and their families are en­
countering an ever wider variety of problems which the 
general polity has dealt with through formal regulation 
and which may therefore appropriately be denominated as 
‘ ‘ legal problems ’ ’; and that because of the present structure 
of the American Bar, as governed by the prevailing canons 
and rules, in many oases the average worker is not being 
apprised of his legal rights in such fields as landlord and 
tenant, consumer credit and family law, as well as work­
men’s compensation, and is not being afforded an adequate 
opportunity to secure the services of a lawyer in whom he 
has confidence and who is competent to meet his particu-



10

lar needs at a price he can afford to pay.^ See, e.g., M. 
Schwartz, Foreword: Group Legal Services im Perspec­
tive, 12 U.C.L.A. L. Rev. 279, 286-295 (1965); J . Carlin and 
J. Howard, Legal Representation and Class Justice, 12 
U.C.L.A. L. Rev. 381, 386-423 (1965), (collecting and analyz­
ing earlier authorities); Committee Report on Group Legal 
Services, 39 Cal. S. B.J. 639, 652-660 (1964), (collecting 
and analyzing earlier authorities); E. Cheatham, A Lawyer 
When Needed: Legal Services for the Middle Classes, 63 
Colum. L. Rev. 973 (1963); E. Koos, The Family and the 
Law (1949); Iowa State Bar Association, Lay Opinion of 
Iowa Lawyers (1949); C. Clark and E. Corstvet, The Law­
yer and the Public: An A. A. L. S. Survey, 47 Yale L.J. 
1272 (1938); K. Llewellyn, The Par’s Troubles, and Poul­
tices—And Cures?, 5 Law and Contemp. Proh. 104 (1938).

As the Committee Report on Group Legal Services, supra, 
39 Cal. S. B.J. at 652, 659 stated, after analyzing the rele­
vant data:

“We are persuaded that there is an unfilled public 
need for legal services; that the public from time 
to time is confronted with problems for which legal 
assistance would be on any standard highly desir­
able but where legal assistance is not obtained.”

“ Three indices tend to confirm that the public is 
not presently being adequately serviced by the 
legal profession. The growth of unauthorized prac­
tice (lay competition) has been a response to a 
growing need for legal assistance; a need not being 
met by lawyers. Specialization has been mentioned 
as a partial remedy but, . . . the bar has been reluc­
tant to accept the stringent safeguards in a certi­
fication system that must he innovated in order to 
make specialization an effective device. Prior sur-

4 For a diacussion pinpointing some of the weaknesses in the present system, 
by the then chairman of the American Bar Association’s Committee on Evalua­
tion of Ethical Standards, see E. Wright, An Evaluation of the Canons of 
Professional Ethics, 21 The Record 581 (1966).



11

veys of the public have reported a substantial 
need for legal services. ’ ’

Even the organized Bar, which has fought the establish­
ment of group legal service plans, shows signs of rec­
ognizing the magitude of the problem. Thus ABA President 
Orison S. Harden, in his annual report on the progress of 
the organized Bar, admitted “ We have not yet devised 
satisfactory plans for serving the great mass of middle 
income citizens for whom legal services do not appear to he 
readily available today.” Washington Post, August 8,1967, 
p. 6, col. 6.

Second, and of equal importance, as far as the problem 
presented here is concerned, there is growing recognitio'n 
that well-to-do individuals, and institutions such as the 
government and corporations, receive a qualitatively dif­
ferent kind of legal service than the average working man. 
Messrs. Oarlin and Howard of the Center for the Study of 
Law and Society of the University of California, Berkeley, 
state :

“ Lawyers representing lower-class persons tend to 
be the least competent members of the bar, and 
those least likely to employ a high level or wide 
range of technical skills.”

“ In the highly stratified professional community 
of the metropolitan bar, for example, the large 
firms serving wealthy individuals and large cor­
porations claim a lion’s share of the best legal 
talent. . . . ”
“ Lawyers available to lower-class clients are not 
only less competent, but whatever legal talents 
they have are less likely to be employed in handling 
matters for their poorer clients. In part this is a 
direct consequence of the fee. Thus, Hubert 0  ’Gor­
man [Lawyers and Matrimonial Cases 61 (1963)] 
reports that among matrimonial lawyers in New 
York City (practically all of whom are individual 
practitioners or in small firms) the size of the fee



12

has considerable impact on the quality of service 
provided. Not only is the amount of time spent on 
legal research ‘ conditioned by the anticipated com­
pensation,’ but fees may also ‘dictate the strategy 
and tactics employed in legal representation’.”

“ The quality of service rendered poorer clients is 
also affected by the non-repeating character of the 
matters they typically bring to lawyers (such as 
divorce, criminal, personal in jury): this combined 
with the small fees encourages a mass processing 
of eases.. . . Moreover, there is ordinarily no desire 
to go much beyond the case as the client presents 
it, and such cases are only accepted when there is 
a clear-cut cause of action. . . . ”
“A final significant fact about quality of represen­
tation is that lower-class clients are most likely to 
be provided with remedial service only. If a poor 
person gets to a lawyer it is generally after the 
fact—after he has been arrested, after his wages 
have been garnished, or after his property has been 
repossessed.
“ . . . In [contrast in] representing [well-to-do] 
clients lawyers provide a much wider range of 
services and they are of a more continuous and 
preventive nature. Such services include: (1) 
planning and setting up legal arrangements by es­
tablishing contractual relationships to effectuate 
the client’s wishes and to insure certain legal ad­
vantages, and (2) clarifying and fashioning the 
law to provide maximum protection of the client’s 
interests by means of lobbying in legislative and 
administrative agencies, and by presenting care­
fully worked out legal arguments before various 
official bodies, including appellate tribunals. ’ ’ Car­
lin and Howard, supra, 12 H.C.L.A. L. Eev. at 
384-385 (footnotes omitted.)

Third, the scholars who have studied the problem are in 
general agreement as to the causes of the comparatively 
inadequate representation available to the typical working



13

man. See authorities cited on p. 10, supra. These causes
have been succinctly summarized by the former Solicitor
General, Professor Archibald Cox:

" . . .  [T]he unfilled need for legal services would 
seem to center about two difficulties which it may 
he impossible to overcome without changes in the 
organization, or structure, of the legal profession 
and, incidentally, in some of the canons of ethics.”
"The first difficulty is the inability of individuals 
to meet the high cost of the legal services that they 
occasionally require. It is not that fees are too 
high. Eendering skilled advice requires time and 
training that deserve adequate compensation.^ The 
cost of maintaining law offices is constantly rising. 
Litigation, especially where investigatory work is 
necessary, is expensive at best. Paying even modest 
legal fees puts an almost unbearable burden not 
only upon the poverty-stricken who_ obviously can­
not bear the cost but also upon millions in low and 
middle income groups, unless the case happens to 
he one in which the potential recovery is large 
enough to merit a contingent fee. With the low 
and middle income groups the financial problem is 
not much different from that of hospital or surgical 
costs, which overwhelmed family after family be­
fore the days of group insurance; the need arises 
suddenly, the cost is disproportionate to income 
and no savings have been accumulated against the 
contingency. This economic segment of society 
taken as a class, however, ca,n afford to, and should 
therefore, pay for legal services if some way can be 
found of spreading and sharing the costs. Indeed, 
the devising of acceptable methods would seem to 
offer many advantages for the profession.”

"Second, and possibly more important, is the prob­
lem of ignorance. The ignorance is of two kinds; 
first, ignorance of the possibility that legal advice 
might be helpful and legal remedies may be avail­
able; second, distrust of strange lawyers and ig­
norance as to whether and where reliable legal ser­
vices can be obtained either without cost or within



14

the limited ability to pay. . A. Cox, Poverty 
and the Legal Profession, 54 111. B.J. 12, 14-15 
(1965).

Fourth, there is a consensus among independent scholars 
who have studied this problem that group<service plans tend 
to remove the barriers to adequate legal representation 
noted by Professor Cox. As Professor Murray A. Schwartz, 
of the U.C.L.A. Law School, and a member of the Group 
Legal Service Committee of the California State Bar, has 
noted;

“ These group plans tend to perform at least one of 
three separate functions which can be characterized 
as public awareness, contacting and economic.”

‘ ‘ The public awareness function is the utilization of 
the group to apprise the members of their legal 
rights and of the general availability of lawyers to 
vindicate those rights. . . . ”
‘ ‘ The contacting function is the bringing together 
of the client and a particular lawyer. . . . ”
“ The economic function relates to the pricing of 
legal services. A group may affect the price of legal 
services which any one client pays in two ways.
The first is by adoption of an insurance principle, 
spreading the cost over a large number of potential 
clients (i.e. the members of the group), so that the 
financial burden of the individual legal service 
which might otherwise fall on one member is borne 
by all. All members of the group who are equally 
likely to be subject to the cost, but those who do 
not happen to be will, nonetheless, share it. The 
second way is by increasing the volume of particu­
lar kinds of legal services so as to render the han­
dling of any one instance more efficient and thus 
less costly,” Schwartz, supra, 12 U.C.L.A. L. Eev. 
at 285-286.

Finally, there is no presently available operative alter­
native method, consistent with the B ar’s canons of ethics as



15

presently interpreted, for assuring equal access to the courts 
to the average working man.® The alternative most often 
mentioned by the Bar is the Lawyer Referral Service, see 
the Petition for Rehearing, filed hy the ABA, pp. 6-7, 10, 
in the Trainmen’s Case, but this program does not even pur­
port to make available an insurance or cost-spreading prin­
ciple. Moreover, the limitations of this service are sug­
gested by the 1962 data as to the B ar’s support of the plan, 
which indicates that only 16,000 of the 300,000 practicing 
lawyers in the country participated, Schwartz, supra, 12 
U.C.L.A. L. Rev. at 288, and by the evidence which indicates 
that potential clients prefer the recommendations of or­
ganized groups to which they belong rather than relying 
on chance or the assistance of third parties with whom they 
are not familiar. Committee Report on Croup Legal Ser­
vices, supra, 39 Cal. S.B.J. at 665, 672. As Theodore Voor- 
hees. Director of the National Legal Aid and Defender 
Association, and a former ABA officer, recently noted:

“ Each referral service is now operated out of a 
single downtown office by the Bar Association. 
Usually the association ‘neither vouches for the 
competency’ of lawyers available ‘nor for the qual­
ity of their services’. According to a report of an 
ABA Committee headed by Voorhees, ‘the client 
finds himself in a grab bag with no guarantee—or 
even significant chance—of obtaining an attorney 
with any special training for his particular prob­
lem’.”  Washington Post, August 7, 1967, p. 1, col.
1, p. 11, col. 1.

The other logical alternative is prepaid legal insurance 
open to any one qualified to buy a policy. However, as the 
Committee Report on'Group Legal Services, supra, 39 Cal. 
S.B.J. at 720 succinctly noted:

B Government financing is a possible answer, but tbe funds presently com­
mitted to the pressing legal problems of the indigent are limited. We, there­
fore, exclude it as a possible solution here. See generally, Neighborhood Law 
Offices: The New Wave in Legal Services, 80 Harv. L. Bev. 805 (1967).



16

. [T]hree articles are about the only written 
expressions in the area of prepaid legal insurance. 
Each article stresses how little is known of the need 
for such insurance. . . . ”
‘ ‘ This Committee has actively debated and consid­
ered the subject of prepaid legal insurance. Actu­
arial studies are badly needed if any such insurance 
plans can be successful. Through its secretary and 
members, this Committee has corresponded with 
and spoken to many experts in the insurance and 
actuarial fields.”
“ The response of those in the insurance field was 
uniform; it was decidedly unenthusiastic. No insur­
ance company has been found which was interested 
in either the development or sale of such a plan.”

In light of the points just noted it appears absolutely 
clear to us that the Illinois Supreme Court’s prohibition 
(R. 97-102) of group legal service plans set up by labor 
unions, which embody an insurance or cost-spreading prin­
ciple, seriously undermines the efforts of working men to 
provide themselves with effective legal assistance. I t  de­
stroys the major economic advantages of such plans by re­
quiring each individual to meet the financial difficulties 
caused by a pressing legal problem entirely on his own. In 
many situations, as Prof. Cox points out, p. 13, supra, 
this means that the individual in question will be entirely 
barred from access to the courts. Moreover, it makes it 
extremely unlikely that the members of the group will 
benefit from preventive legal planning and long range 
attempts to influence the course of the law. On the other 
hand, these legal advantages are available to well-to-do 
individuals, and to institutions, since they are in a position 
to retain an attorney who they know has specialized compe­
tence in their area of interest, see pp. 11-12, supra.

In short the instant decision works a very substantial in­
fringement on F irst and Fourteenth Amendment rights. 
Thus^as we have pointed out above, pp. 7-9 supra, the de-



17

cisions of this Court in Button and the Trainmen’s Case 
require an affirmative showing of the “ substantive evils 
flowing” from such plans. No such showing has been, or 
indeed can be, made here. The court below justified the in­
fringement on personal rights which it mandated by argu­
ing that group legal services constitute a possible threat to 
the attorney-client relationship brought about by potential 
conflicts between the individual member’s interest and that 
of the group (R. 101-102). With all due respect, we submit 
that under this Court’s decision in Button this argument 
is untenable.

First, as in Button, it seems extremely unlikely that 
there is any appreciable danger that an attorney employed 
by a union to handle workmen’s compensation claims will 
attempt to sacrifice the interest of a voting member of the 
group to further that of the association. As to this matter, 
the interest of the individual and the group coincide. Neither 
the union nor the attorney has a financial stake in the indi­
vidual lawsuits. Both have the sole interest of satisfying 
each individual member who uses the plan. For the mem­
bers of the group will continue to assess themselves to pay 
his fee only if they are convinced that the attorney they 
employ has their individual interests at heart and that they 
will be well served by the plan when they make use of it. 
I t  is unlikely that they would vote to continue it if they 
had reason to believe that the personal interests of the 
individuals who support the plan, including themselves, 
were being submerged. Thus the fears voiced by the Illinois 
Supreme Court have been widely recognized to be unwar­
ranted, e.g., H. Weihofen, Practice of Lem by Non-Pecur- 
niary Corporations: A  Social Utility, 2 U. Chi. L. Rev. 119 
(1934); Practice of Law by Lay Organizations Providing 
the Services of Attorneys, 72 Harv. L. Rev. 1334, 1344 
(1959); Group Legal Services, 79 Harv. L. Rev. 416, 420



18

(1965). Zimroth, supra, 76 Yale L.J. at 977.® Second, District 
12 has taken extensive precautions to safeguard the attor­
ney-client relationship and to insure that the individual 
member has control of his law suit. The Union has made it 
clear that it will not take part in litigation decisions. For 
this reason there was no record evidence tending to show 
that the interests of a single member had ever been sacri­
ficed in the fifty years of experience under this plan. Sig­
nificantly, the complainant here is the Illinois Bar Associa­
tion, not a member of District 12. In the face of this record 
the unfounded suspicions of the court below are not a suf­
ficient predicate for an infringement upon F irst and Four­
teenth Amendment rights.

In essence, the Illinois Supreme Court concluded that per­
sonal payment of the attorney’s fee by the client is the sine 
qua non of a proper and ethical attorney-client relationship. 
The fact that the court below excepted legal aid for in­
digents from the ambit of its ruling (R. 101-102) indicates 
the error inherent in this conclusion. For similar needs de­
serve similar responses, and the problems of the indigent 
and the average working man in securing assured access to 
the courts are, in fact, similar. Recognizing the validity of 
this point Theodore Voorhees, Director of the Legal Aid 
and Defender Association, has suggested extending legal 
aid to the millions ‘ ‘ who can afford to pay fees but not very 
large ones.”  Citizens “ of moderate means” outnumber the 
very poor by 2 to 1, Voorhees said, and “ have legal proh-
6 Mr. Zimroth states:

. Generally, we assume that a lawyer is an advocate, serving no 
interest but his client’s. If a lawyer in a law firm is defending an 
antitrust suit for a small client, we do not normally suspect that he is 
subverting this client’s interest in order to create a precedent favor­
able to the firm’s bigger clients. I f  an independent lawyer is a mem­
ber of SNCO, or believes in its goals, or perhaps even is paid to do 
some of its tax work, we do not think that in defending a Negro in 
an assigned criminal case he will press SNCC’s favorite legal theories 
rather than the ones most beneficial to his client. ’ ’
‘ ‘ So far these assumptions about the lawyer’s sense of responsibility 
have worked reasonably well. When they don’t, dissatisfied clients may 
provide a means for detection. There is no reason to make different 
assumptions about lawyers working for group legal services. . . . ”



19

lems closely akin to the poor. They have domestic difficul­
ties, landlord problems, consumer claims, and debts. They 
do not number lawyers among their acquaintances, do not 
know how to find them, and fear their charges.”  Washing­
ton Post, August 7, 1967, p. 1, col. 1. Indeed, as we have 
attempted to show, while the financial problems encountered 
by the average working man or an indigent seeking legal 
redress are similar, the solution to the former’s problems 
may well be far simpler. Society must provide resources 
to the indigent; the worker on the other hand needs only 
the freedom to join with others in meeting common 
problems.

In summary, we submit that the reasoning of the decision 
below is flatly inconsisent with that of this Court’s deci­
sions in the Trainmen’s Case and in Button. There is no 
logical train of thought to support the conclusion that Dis­
trict 12’s plan gives group interests greater scope to prevail 
over individual interests than does the Trainmen’s plan, 
nor is there a single meaningful distinction between this 
plan and the plan upheld in Button. Thus, the Illinois 
Supreme Court failed to give adequate weight to the fact 
that this Court had already considered possible conflicts 
between the individual and the group and found them 
insufficient to overcome the constitutional rights of workers 
“ to associate together to help one another to preserve and 
enforce [their] rights . . . , ”  Trainmen’s Case, 377 U.S. at 7.



20

CONCLUSION
For the foregoing reasons, as well as those stated hy the 

petitioner, the decision of the Supreme Court of the State 
of Illinois should be reversed.

Eespeetfully submitted,
J. A lbert W oll 
General Counsel, AFL-CIO
E gbert C. Mayer 
L aurence Gtold 

736 Bowen Building 
815 Fifteenth Street, N.W. 
Washington, D.C. 20005

T homas E , H arris
Associate General Counsel, AFL-CIO  

815 Sixteenth Street, N.W. 
Washington, D.C. 2(K)06

August 1967



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