United Mine Workers of America, District 12 v. Illinois State Bar Association Petitioners' Reply Brief
Public Court Documents
October 31, 1967

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Brief Collection, LDF Court Filings. United Mine Workers of America, District 12 v. Illinois State Bar Association Petitioners' Reply Brief, 1967. 98813527-c79a-ee11-be37-000d3a574715. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/7c19eeff-792c-4d58-9fba-d27046de9f85/united-mine-workers-of-america-district-12-v-illinois-state-bar-association-petitioners-reply-brief. Accessed April 27, 2025.
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I n The ®nurt n f % n x U h October Term, 1967 No. 33 United Mine Workers of A merica, District 12, Petitioners, V. Illinois State Bar A ssociation, an Illinois Not For Profit Corporation, et als., Respondents. On Writ of Certiorari to the Supreme Court of the State of Illinois PETITIONEES’ REPLY BRIEF Edmund Burke 217 South Seventh Street Springfield, Illinois Edward L. Carey Harrison Combs Willard P. Owens 900 Fifteenth Street, N.W. Washington, D. C. M. E. Boiarsky 511 Kanawha Valley Building Charleston, West Virginia Attorneys for Petitioners. iA R R IT T FItiN TIN ft CO U rA N T . C H A ttL U T O N . W. VA. INDEX TABLE OF CONTENTS Page Foreword___________________________________ 1 Questions Presented _________________________ 1 Statement of the Case________________________ 2 Argument __________________________________ 3 I. ______________________________________ 3 1., A. and B____________________________ 3 L, C__________________________________ 7 1., D__________________________________ 9 II. _____________________________________ 10 III______________________________________ 10 Conclusion_________________________________ 10 TABLE OF CASES BRT V. Virginia State Bar, 377 U.S. 1, 5, 6 ________ 3, 7 NAACP V. Button, 371 U.S. 4, 5 _______________ 3 Peoples ex rel. Chicago Bar Assn. v. Lally, 313 111. 21, 144 N.E. 329 (1924) ____________________ 9 State of Wyoming v. State of Colorado, 286 U.S. 494, 508 _____________________________________ 9 STATUTES Labor Management Relations Act, 1947 (29 USCA 141, et seq.)_____________________ 6 Workmen’s Compensation Act: Illinois Revised Stat. (1959), Ch. 48, Sec. 138.19(c)______________________ 6 i In The Court of tlyr lluitr̂ i î totro October Term, 1967 No. 33 U nited Mine Workers of A merica, D istrict 12, PetitioTiers, V. Illinois State Bar Association, an Illinois Not F or Profit Corporation, et als., Respondents. On Writ of Certiorari to the Supreme Court of the State of Illinois PETITIONERS’ REPLY BRIEF Questions Presented In the main, answers to Respondents’ arguments are found in Petitioners’ main brief. Inaccuracies therein prompt this Reply, wherein Petitioners will follow the sequence in Respondents’ brief. Foreword Respondents object (Br. 2) to Petitioners’ statement of Question 1 insofar as it asserts the attorney’s salary is paid from membership dues. Petitioners’ recital in Answers to Interrogatories (R. 15) that “No portion of dues is allocated to pay attorney’s salary” follows Peti tioners’ statement that “Dues of each member have been $5.25 per month since November 1st, 1964” (R. 15). Read conjointly, the meaning is clear and positive. Reasonably interpreted it means, and could mean, only that of the dues paid by Petitioners, no amount thereof is allocated to pay the attorney’s salary. But it does not mean, nor could it mean, that the attorney’s salary is paid from some source other than membership dues. The fact that Respondents do not suggest the record shows any source other than membership dues emphasizes the total lack of validity to their objection, as well as their charge (Br. 2) that the “record refutes” Petitioners’ state ment of Question 1. Statem ent o f the Case Respondents’ statement of the case omits numerous facts appearing in Petitioners’ statement (Br. 5-9). Some of the omissions are that the attorney’s employment letter advised him he would represent an injured mem ber “if he desires your services” but “If he is represented by other counsel you will immediately turn over his file to such counsel”; the attorney would “receive no further instructions or directions and have no interference from the District, nor from any officer, and your obligations and relations will be to and with only the several per sons you represent” (R. 19-20). Also omitted are un disputed facts that final determinations concerning set tlements are made by claimants (R. 45); the full amount of settlements or awards is paid directly to the injured member; no deductions are taken therefrom; and neither the attorney, the district nor any officer receives any portion thereof (R. 16, 46, 62). Undisputed too is the attorney’s statement that he frequently suggested to in jured members “they could employ other counsel if they wished” (R. 20, 51, 52). Respondents’ Statement of the Case points to a form of Report to Attorney on Accident” which appears in the Appendix to their brief (pp. 42-44). This report, prepared by the injured person or someone under his direction (R. 58) after a reasonable time has elapsed when compen sation is due and demand on the company has been made, is to bring to the attorney’s attention cases where com pensation is not paid when due, or is inadequate, or where payments are discontinued before it is proper so to do (see Respondents’ Brief, p. 42). Another form referred to in the record and in Respondents’ statement (Br. 8) is the application for adjustment of claims (R. 18), which is the form forwarded to the Industrial Commission. While Petitioners’ attorney authorized his name to be signed to the applications for adjustment of claims by sec retaries in the union offices, his deposition discloses that when asked “whether you might dictate it to” em ployees in the office of, and paid by. District 12, the at torney replied, “That is the only way it is done generally speaking is that they are dictated hy me to the secretary” (R. 36, 18). ARGUMENT I. L, A. and B. Citations of state authorities in Respondents’ brief (pp. 14-15) are cases which are unrelated to labor unions and which did not discuss constitutional rights posed by this Court’s NAACP v. Button, 371 U.S. 415 and BRT v. Vir ginia State Bar, 377 U.S. 1; and such cases all antedated Button and Trainmen. Respondents stress that Illinois has many competent and successful practitioners before Illinois’ Industrial Commission (Br. 19-20), but this was not a projected issue before the Illinois Supreme Court. That Court did not base its opinion on such an argument nor, as Re spondents stress (Br. 17-19), upon whether an analysis of workmen’s compensation cases before that Court re flected competency or incompetency on the part of Peti tioners’ attorney, or upon whether the arrangement fully advanced legitimate legal claims of coal miners. Whether the volume of claims handled by one attorney, or the fact that Petitioners’ attorney as an Illinois state senator spends a certain portion of his time in a legisla tive session or that he earns a salary from the State of Illi nois as a senator are matters outside the complaint’s allegations, as well as the proof in the trial court; they were not presented to the Illinois Supreme Court, as the record herein shows; and the Illinois Supreme Court’s opinion, of which Petitioners complain to this Court, made no mention of them. They are totally dehors the record. These irrelevancies are best manifested in the fact that the instant case was not instituted to mirror dis satisfaction of injured coal miners represented by the attorney selected to represent Petitioners, but it was initiated by a group of attorneys whose complaint does not even suggest that it has the imprimatur of a majority of the members of the State Bar Association. What is pertinent, and this Respondents ignore, is that uncontradicted evidence establishes that injured coal miner members are not bound to use the attorney so selected by Petitioners. Petitioners’ main brief (p. 32) asserts that the attorney’s employment letter merely makes the attorney available if an injured employee “de sires your services”, but “If he is represented by other counsel you will immediately turn over his file to such counsel” (R. 19-20). The invalidity of Respondents’ challenge (Br. 27) of Petitioners’ assertion that union members have free choice of an attorney by referring to the Elery D. Morse incident becomes unequivocal when tested by the rec ord’s showing; Initially Respondents’ complaint charged that though Morse retained the services of attorneys to file his application for adjustment of his claim with the Industrial Commission, the District 12 attorney also filed a claim for Morse without his consent, approval, au thorization or knowledge (R. 6); though Petitioners de nied these allegations (R. 7-8) and their motion to strike them was denied (R. 8-10), the record does not disclose any attempt by Respondents to prove the allegations. Instead, the record discloses Respondents’ motion to de lete the Morse allegations. Petitioners objected thereto, asserting inter alia (R. 21) that Morse, an elderly man, “acting upon bad advice”, retained counsel who, “well knowing that he had and was entitled to the free services of counsel provided by himself and his fellow em ployees, took, for themselves out of his award the sum of ($1,795.00) One Thousand Seven Hundred Ninety-Five Dollars” and that the Morse averments “should remain in the Complaint and the facts should he disclosed for the record as an apt illustration of the commercialism, and its attendant evils, the Plaintiffs are seeking to re store to the industrial accident field in the State of Illi nois” (R. 21). The trial court overruled Petitioners’ ob jections and permitted the complaint to be amended by deleting the Morse allegations (R. 21). 6 Petitioners do not contend that injured workmen may not pay an attorney a fee for services rendered in a workmen’s compensation case. They do contend that by statute the Illinois Legislature deemed it essential to be protective of compensation awards. Statutes cited by Respondents (Br. 21-22) demonstrate clearly the legis lative intent that attorneys’ fees should be carefully scrut inized by the Industrial Commission and held at a mini mum to the end that as much of the award as possible should find its way to the claimant or his beneficiaries. Clearly, the protection of coal miners’ legal rights at a minimum cost is consonant with the philosophy of Illinois’ workmen’s compensation statute. Nothing therein is sug gested by Respondents as reflecting legislative will or intent that Petitioners’ legal aid plan violated its ex pressed protective policy. To the contrary, it must be presumed, in view of the plan’s long existence, that the Illinois legislature knew of and sanctioned the plan by which laborers were able to procure awards at a mini mum cost, rather than to pay 10 to 20 percent thereof which Respondents admit (Br. 21-22) the Industrial Commission has allowed. It is pertinent that Section 19(c) of the Act, cited by Respondents (Br. 22), authorizes the payment of attor neys’ fees “for services authorized by the Commission under this Act”. Respondents’ argument (Br. 22-25) that the Labor Management Relations Act (29 USCA 141, et seq.) does not have within its purview the salaried lavvyer arrange ment considered by the Illinois Supreme Court overlooks the fact that the right of collective bargaining includes, as one of the conditions of employment, a labor union’s right to demand workmen’s compensation coverage in relation to their employment. Certainly this right in cludes not only the right of employees “to consult with each other in a fraternal organization” and to “talk to gether freely as to the best course to follow” as this Court enunciated in Trainmen, 377 U.S. 1, 5-6, but also the right of a group of imion members to assist each other in assuring legal assistance in the prosecution of a claim related to their employment. L, C. To argue, as Respondents’ do (Br. 27-28), that it is appropriate for an insurer to provide and pay an insurer- selected attorney to represent an insured on the basis that “it is the insurance company’s money”, and yet press upon this Court that coal miners may not do so when their rights to consult with each other and select a spokesman from their number “who could be expected to give the wisest counsel” (377 U.S. 6) in carrying out a legal aid program are constitutionally and statutorily recognized under national labor policy, is indeed an in congruity. If freedom of choice in selecting an attorney is the guiding factor, as Respondents argue, it is indeed brash for Respondents to contend that coal miners in voluntary associations as a labor union may not choose an attorney to represent those of them in prosecuting their claims arising in their unfortunate periods of injury or resulting in death from employment, and yet, in con trast, assert that it is appropriate this alleged condemna tion does not exist where an insurer selects and pays for counsel services rendered an insured because “it is the insurance company’s money”. Most telling of the fallacy and abortiveness of Re spondents’ argument appears in their assertion that in the insurer-insured legal aid arrangement there is “a 8 community of interest growing out of the contract of insurance with respect to an action brought by a third party against the insured” (Br. 27); yet, as shown in Petitioners’ brief (p. 33), that “community of interest” dissipates, as the American Bar Association’s Committee on Professional Ethics and Grievance’s Opinion 282 re cites, “If the insured does not desire to avail himself of the company’s obligation to defend the suit including counsel, . . . he is at complete liberty to renounce his rights under the insurance contract and employ inde pendent counsel at his own expense”. Yet, an injured coal miner, free to select and pay another attorney, is not required to give up any right he possesses. Respondents’ good faith is clouded when, in charging “that the individual miner is exploited to benefit the union” (Br. 28), they assiduously withhold from the Court and ignore the uncontradicted evidence that the full settlement or award is paid directly to the injured member; no deductions are taken therefrom; the attorney receives no part thereof; and neither the District nor any officer receives any portion of the award (R. 16, 46, 62; Pet. Br. 9). On the other hand, even Respondents admit (Br. 21-22) that, where fees are fixed by the Industrial Commission, from 10 to 20 percent of awards, are allowed. To this degree of course the awards are dissipated. Re spondents’ efforts herein, implemented by the Illinois Supreme Court’s opinion and judgment herein, to im pose upon a laboring man, at a time when he is suffering physical handicap as well as inability to earn a livelihood, the requirement of sharing with a lawyer whatever in adequate compensation he may receive, poses the quaere whether the instant litigation is an attempt to serve the selfish interests of members of the legal profession at the expense of injured workmen. Respondents’ thesis that exploitation of the coal miner would not exist if he is represented by an attorney other than Petitioners’ choice finds full challenge in their cita tion (Br. 21, fn. 4) of People ex rel. Chicago Bar Assn. V. Lally, 313 111. 21, 144 N.E. 329 (1924) which gives in detail the charges of fraud by an attorney upon a com pensation claimant in connection with an attorney’s fee fixed by the Industrial Commission. I., D. Answers to Respondents’ response to Petitioners’ com plaint that the injunctive decree lacks factual support are found in Petitioners’ main brief (pp. 37-38). Though Respondents challenge (Br. 29) Petitioners’ citation of State of Wyoming v. State of Colorado, 286 U.S. 494, as authority that an injunctive decree should not be broader than the case warrants, it is noted that the opinion (p. 508) reads that “No showing appears to have been made indicative of any occasion at that time for a broader injunction. Of course, in the absence of such showing, a broader injunction was not justified”. Nor are Respondents’ suggested limitations (Br. 30) free of Petitioners’ objections set forth in their main brief. Even if the Court rejects Petitioners’ contentions that employment of an attorney on a salary basis to represent injured workmen in compensation cases, the injunctive decree should be responsive to that violation and to that alone. Thus, the suggested language under (a) and (b) on page 30 of Respondents’ brief, which goes beyond such violation, would find no factual support. No language in the suggestion would be warranted in any event other than “Employing attorneys on salary basis to represent its members with respect to Workmen’s Compensation claims”. 10 II. Answers to Respondents’ argument II. (Br. 30-36) are found in Petitioners’ argument in their main brief (pp. 20-37). III. While the instant situation revealed a local problem within Illinois, the problem is not purely a local one with in that State, as Respondents say (Br. 37); but United Mine Workers of America is a national organization oper ating throughout the anthracite and bituminous coal areas, and thus it is obvious that the situation is one of national interest rather than purely local interest. CONCLUSION For the reasons herein discussed, as well as those dis cussed in Petitioners’ main brief. Petitioners submit that this Court should grant the relief contained in their main brief’s Conclusion (p. 39). Respectfully submitted, Edmund Burke 217 South Seventh Street Springfield, Illinois Edward L. Carey Harrison Combs Willard P. Owens 900 Fifteenth Street, N.W. Washington, D. C. M. E. Boiarsky 511 Kanawha Valley Building Charleston, West Virginia Attorneys for United Mine Workers of America, District 12 Dated: October, 1967 r ^ *-» ^ • , \