United Mine Workers of America, District 12 v. Illinois State Bar Association Petitioners' Reply Brief

    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



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