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

    / ' f  ̂ V '■ A a;

Iir  THE

Olflurt nt BUUb
October T eem, 1967 

No. 33

U nited Mine  W orkers of A merica, District 12,

Petitioner,
-V.-

I llinois State B ar A ssociation et at.

ON writ of certiorari to the supreme court of ILLINOIS

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE, 
BRIEF AMICUS CURIAE, AND MOTION FOR LEAVE TO 
PARTICIPATE IN ORAL ARGUMENT OF THE NAACP 
LEGAL DEFENSE AND EDUCATIONAL FUND, INC., AND 
THE NATIONAL OFFICE FOR THE RIGHTS OF THE 
INDIGENT

J ack Greenberg 
J ames M. Nabrit, II I  
Melvyn Zarr

10 Columbus Circle
New York, New York 10019

Attorneys for NAACP Legal 
Defense and Educational Fund, 
Inc., and the Nation Office for 
the Rights of the Indigent

J ay H . T opkis 
Of Counsel



TABLE OF CONTENTS

PAGE

MOTION FOE LEAVE TO FILE B EIEF AMICUS 
CURIAE  .............................................................................. 1

B EIEF AMICUS CURIAE

Statement of the C ase....................................................... 5

Summary of A rgum ent..................................................... 6

Argument ........................   8

Introduction ................................................................  8

I. A Great Gap Exists Between the Legal Ser­
vices Americans Need and the Legal Services 
They Can Atford Under the Traditional Fee 
System .................................................................... 9

II. Creative Elements in the Legal Profession Have 
Eecently Undertaken to Develop New Forms 
of Practice to Satisfy the Manifest Need for 
More Plentiful, Efficient and Inexpensive Legal 
Services ..................................................................  14

III. The Eigid Employment of the Canons of Ethics 
by State and Local Bar Associations to Throttle 
These New Forms Is Eetarding Progress 
Toward Satisfying the Manifest Need for Ser­
vices ........................................................................ 26



u

PAGE

IV. There Is a Constitutional Eight to Associate 
to Give and Eeceive Legal Services Within Any 
Institutional Framework Which Adequately 
Protects Clients From Injury. The Implemen­
tation of This Eight Is Wholly Consistent With 
the Fulfillment of the Mission of the Canons of 
Ethics and the Eecognition of New Legal Forms 
to Meet New Legal Needs .................................. 35

Conclusion ..........................................................................  46

MOTION FOE LEAVE TO PAETICIPATE IN 
OEAL AEGUMENT .....................................................  47

T a bm  oe Cases

Cases:

Bates V. Little Bock, 361 U. S. 516 (1960) ......................  39
Brotherhood of Railroad Trainmen v. Virginia State

Bar, 377 U. S. 1 (1964) ..............................8,15,21, 26, 27,
33, 34,37, 38

Fenster v. Leary, N. Y. (Court of Appeals,
July 7, 1967) ..................................................................  41

Gideon'v. Wainwright,272TJ. S. 335 (1963) ..................  10
Griswold V. Conn., 381, U. S. 479 (1965) ................ 39,41,42
Gunnels v. Atlanta Bi^r, 191 Ga. 366, 12 S. E. 2d 602

........................................................... 20(1940)

Harrison v. United Planning Organisation, Civ. 
\#2282-65 (D. C., D. C .) .................................................  27



lU

PAGE

In re Brotherhood of Railroad Trainmen, 13 111, 2d
391,150 N. E. 2d 163 (1958) .........................................  21

In  re Community Action for Legal Services, Inc., 26
App. Div. 2d 354, 274 N. Y. S. 2d 779 (1966) ............. 28

In  re Community Legal Services, Inc., #-4968, Common
Pleas # 4  (March Term, 1966) ..................................25,28

In  re Gault, 387 II. S. 1 (1967).........................................  10
In  re Maclub, 295 Mass. 45, 3 N. E. 2d 272 (1936) ....... 16

Jones V. Roanoke Valley Legal Aid Society, #8986 
(Hustings Ct., Eoanoke, 1967) .......................... .........  28

Matter of Pinkert, #299 (App. Div., 4th Dept. June
29, 1967) .......................................................................... 28

McLaughlin v. Florida, 379 IT. S. 184 (1964) ...............39,40
Meyer v. Nebraska, 272 U. S. 390 (1923) ..............39,40,42
Miranda v. Arizona, 384 U. S. 437 (1966) ......................  10

NAACP  v. Button, 371 H. S. 415 (1963) .....8,19, 26, 27,33,
35, 36, 37

People ex rel. Chicago Bar Association v. Chicago
Motor Club, 362 111. 50, 199 N. E. 1 (1935) ............... 16

People ex rel. Courtney v. Association of Real Estate 
Taxpayers, 354 111. 102, 187 N. E. 823 (1933) ........... 17

Schware v. Board of Law Examiners, 353 TJ. S. 232
(1957) .............................................................................  40

Slaughterhouse Cases, 83 U. S. (16 Wall.) 36 (1872) .... 39 
Stanislaus Co. Bar v. California Rural Legal Assist­

ance, #93302 (Superior Ct., Stanislaus Co. (1967)) 28



IV

PAGE

Touchy V. Houston Legal Foundation, Doc. #4636 (Ct.
Civ. App. 1967) ............................................................  28

Trautman v. Shriver, #66-188-ORL Civil (D. C., M. D. 
F la .) .................................................................................  28

United Mine Worhers, District 12 v. Illinois State 
Bar Association, 33 111. 2d 112, 219 N. E. 2d 503 
(1966) .................................................................. 8,27,37,43

Vitaphone Corp. v. Hutchinson Amusement Co., 28 P. 
Supp. 526 (D. Mass. 1939) .........................................  17

Constitutional and Statutory P rovisions 

Provisions:

TJ. S. Const., Amend. I  ...................................................  45

TJ. S. Const., Amend. XIV .............................................  38

Civil Rights Act of 1964, Title VII, 78 Stat. 253-266 
(1964) .............................................................................. 11

Civil Eights Act of 1964, Title II, 78 Stat. 243 (1964) .... 11

Economic Opportunity Act, 75 Stat. 516 (1964) ........... 28

Int. Rev. Code of 1954 §104.............................................  13

Other Sources

Sources:

American Bar Associiltion, Informative Opinion of the 
Committee on Unauthorised Practice of the Law,
36 A. B. A. J. 677 (1950) ......................................... 20,43



PAGE

American Bar Association, Standing Committee Un- 
anthorized Practice of the Law, Current Report, 32 
U natjthorized P ractice N ews 56 (1966) .............. 34,47

Cahn and Cahn, The War on Poverty: A  Civilian
Perspective, 73 Yale L. J. 1317 (1964) ........................  24

California State Bar Association, Committee on Group 
Legal Services, Group Legal Services, 39 Cal. State

B. J. 639 (1964) ....................................... 14,15,16,18, 21, 23
Carlin, L awyers E thics (1966) ...................................... 31
Carlin, L awyers o h  their Owh (1962) ..........................  31
Carlin and Howard, Legal Representation and Class

Justice, 12 IJ. C. L. A. L. Kev. 381 (1965) ................ 11,12
Cheatham, A  Re-evaluation of the Canons of Profes­

sional Ethics, 33 T en h . L. Rev. 129 (1966) ................  34
Comment, Neighborhood Law Offices: The New Wave 

in Legal Services for the Poor, 80 H arv. L. Rev. 805
(1967) .......................................................................12,13,24,25

Comment, Participation of the Poor: Section 202(a) (3) 
Organizations Tinder the Economic Opportunity Act
of 1964, 75 Yale L. J. 599 (1966) .............................. 32

Cox, Poverty and the Legal Profession, 54 Tt.t,. B. J .
12 (1965) ...............................................................................  14

Derby, Unauthorized Practice of Law, 54 Cal. L. R ev.
1331 (1966) ...........................................................................  17

Masotti and Corsi, Legal Assistance for the Poor, 44
J. U rban Law 438 (1967) ................................................10,12

McCalpin, A  Revolution in the Law Practice, 15 Clev.-
Mar. L. R ev. 203 (1966) .................................................... 26

McCloskey, Economic Due Process and the Supreme 
Court—An Exhumation and Reburial, 1962 S. Cx.
R ev. 34 (1962) ..............................................................  41



VI

PAGE

New York Times, August 7, 1967, p. 11, col. 1 (late 
city ed.) ..........................................................................  12

Office of E conomic Oppoetunity, F iest A nnual E e- 
POET OF THE LbQAL SeEVICES P eOGEAM TO THE A mEEI-
CAN Bae A ssociation (1966) ...............................24,30,45

Office of E conomic Oppoetunity, Legal Seevices P eo- 
geam Guidelines (1966) ..................................... 24,26, 28,30

Office of E conomic Oppoetunity, National Confbe- 
ENCE on Law and P oveety (1965) ............................24, 31

Office of E conomic Oppoetunity, T he P ooe Seek 
J ustice (1967) ..............................................................  24

Parker, The Relations of Legal Service Programs with 
Local Bar Associations, in Office of E conomic Op ­
poetunity, National Confeeence on Law and P ov­
eety (1965) ......................................................................... 29,31

Pye, Bole of Legal Services in the Anti-Poverty Pro­
gram, 31 Law and Contemp. P eob. 211 (1966) .......... 9

Eeisler, Legal Services for All—Are New Approaches 
Needed?, 39 N. Y. S. B. J. 204 (1967) ...................... 43,44

Silverstein, A Change of Pace Conference on Legal 
Services (August 6, 1967) .............................................  10

Sparer, The Welfare Client’s Attorney, 12 IJ. C. L. A.
L. R ev. 361 (1965) ....................................................... 11

State Bar of California Reports, May-June, 1967, p. 1, 
col. 1 .....................    33

ten Broek, California’s Dual System of Family Law,
16 Stan. L. R ev. 25fr, 900 (1964) ................................ 11

U nited States Depaetmbnt of H ealth, E ducation 
AND W elfaee, Confeeence P eoceedings: T he E x­
tension OF Legal Seevices to the P ooe (1964) ....24, 25



vu

PAGE

Utton, The British Legal Aid System, 76 T ale L. J.
371 (1966) ...................................................................... 42

Verbatim Proceedings, Meeting of the New Haven 
County Bar Association, November 16, 1964 ........... 29

Winkler, Legal Assistance for the Armed Forces, 50 
A. B. A. J. 451 (1964) .......................... ......................  18

Zimroth, Qrouy Legal Services and the Constitution,
76 Yam; L. J. 966 (1967) ..................................... 16,38,44



I n the

Olourt at
October T erm, 1967 

No. 33

U nited Min e  W orkers, D istrict 12,

Petitioner,

Illinois State Bar A ssociation, et al.

on writ of certiorari to the supreme court op ILLINOIS

M otion for  Leave to F ile  B rief Amicus Curiae

Movants NAACP Legal Defense and Educational Fund, 
Inc., and the National Office for the Eights of the Indigent, 
respectfully move the Court for permission to file the at­
tached brief amicus curiae and assign the following reasons.

During the past thirty years, the legal profession has 
come to recognize that its goal of providing all Americans 
with adequate legal representation cannot he achieved 
through exclusive reliance upon the traditional attorney- 
client relationship. In some instances, clients in need of 
legal assistance are totally indigent, and cannot afford to 
hire a lawyer. In others, clients are indigent in the sense 
that they cannot possibly afford to pay the legal fees



charged in a complex case. In still other instances, clients 
who can afford counsel cannot find an attorney willing 
to handle their cases, because their causes are unpopular 
(as in civil rights litigation in the deep South).

The incorporation of petitioner Legal Defense Fund 
twenty-eight years ago was one of the earliest reactions 
to the newly recognized need for new forms of legal service. 
The Fund employs a staff of over twenty lawyers who 
represent Negroes all over the nation in cases involving 
equal opportunities in education, employment, housing, 
and economic security, as well as in criminal cases. Its 
salaried lawyers receive no fees from its clients; the Fund’s 
budget is derived primarily from private donations.

Last year the Fund established as a separate corpora­
tion movant National Office for the Eights of the Indigent 
(NOEI) as another response to the manifest need for legal 
services which cannot be satisfied by private practitioners 
alone. I t too is an association employing salaried attor­
neys, and its income is provided initially by a grant 
from the Ford Foundation. NOEI is cooperating with 
lawyers in both urban and rural areas to assist the poor 
in individual cases and at the same time to suggest to 
appellate courts the need for changes in legal doctrines 
which unjustly affect the poor. NOEI is currently involved 
in cases concerning public welfare, urban renewal, public 
housing, garnishment rules, and consumer frauds. I t works 
closely with attorneys in neighborhood legal offices estab­
lished under the Economic Opportunity Act of 1964. These 
offices represent still ^nother attempt to expand legal ser­
vice so that everyone in need of counsel may have it.

Many of the experiments providing new forms of legal 
service described in Section II  of the appended brief



(pp. 14-26) can be described as forms of “group legal 
service.” Yet such services are often deemed unethical by 
state and local bar associations. The present case is a 
typical instance in which an attempt to provide a large 
number of persons with inexpensive legal assistance is 
being stifled by a state bar association. The legal doctrine 
announced by the Illinois Supreme Court, we submit (brief, 
pp. 26-34), threatens not only the effort of the Mine 
Workers Union to help solve some of the legal problems of 
its members, but jeopardizes, to a greater or lesser extent, 
all these experiments in group service. Our own opera­
tions, the neighborhood law office programs funded by the 
federal government, and of course the more classic forms 
of group legal service (such as that established by the 
Mine Workers)—all are threatened by this doctrine. 
And even were the Illinois Court’s doctrine definitively 
restricted to the latter category of service, a major objec­
tive of the Legal Defense Fund and NORI—the extension 
of legal service to all Americans who need it—^would be 
severely retarded. Reaching the objective of adequate legal 
services for all is an enormous undertaking requiring not 
one, or ten, but perhaps thousands of experiments in group 
legal services. To the extent doctrines which cripple this 
necessary experimentation are allowed to flourish, the 
Legal Defense Fund’s and NORI’s objectives are frus­
trated. Therefore, we respectfully submit that the views 
of movants may he of interest to the Court.

We have asked permission of the parties to file this brief 
amicus curiae; counsel for petitioner consented but coun­
sel for respondents Illinois Bar Association et al. refused.



W herefore movants pray that the attached brief amicus 
curiae be permitted to be filed with this Court.

Respectfully submitted,

J ack GtREekberg 
J ames M. N abrit, III  
Melytk Zare

10 Columbus Circle 
New York, New York 10019

Attorneys for NAACP Legal 
Defense and Educational Fund, 
Inc., and the National Office for 
the Bights of the Indigent

J ay H. T opkis 
Of Counsel



I n the

Olourt of tlfie
October T erm, 1967 

No. 33

U nited Mine W orkers op A merica, D istrict 12,

Petitioner,
— v̂.—

I llinois State Bar A ssociation et at.

on writ op certiorari to the supreme court op ILLINOIS

BRIEF AMICUS CURIAE

Statem ent o f  the Case

For many years, the Mine Workers Union has employed 
a licensed attorney, who represents members and their 
dependents, if they so desire, in Workmen’s Compensation 
cases. The attorney is paid $12,400 per year by the Union, 
and receives no additional fees from the members he rep­
resents. Members are free to employ outside counsel if 
they prefer. Among the conditions of the attorney’s em­
ployment by the Union is the stipulation that “you will 
receive no further instructions or directions and have no 
interference from the District [Local] nor from any officer.



6

and your obligations and relations will be to and with only 
the several persons you represent.” The attorney seeks to 
achieve settlements fair and acceptable to the claimants; 
when he cannot reach such a settlement with the company, 
he represents his client before the Industrial Commission 
of Illinois. The worker receives the full amount of the 
settlement or award.

The Illinois State Bar Association alleged that this pro­
cedure constituted the unauthorized practice of law by 
the Union, and secured an injunction from the circuit court 
of Sangamon County restraining the Union’s continued 
employment of the attorney to represent individual mem­
bers. The Union unsuccessfully contended there and in the 
Illinois Supreme Court that its activities are constitution­
ally protected.

Summary o f  Argum ent

In recent years, it has become increasingly evident that 
most Americans are not receiving the legal services they 
vitally need. We have begun to recognize that just as all 
of us need routine medical care, legal assistance is also 
a routine need in a complex society. Persons in every 
bracket, from the very rich to the very poor, have this 
need, yet very few can afford the legal help they need, 
given the high demand for lawyers, the small supply, and 
the prevaihng method, of providing and paying for legal 
services (pp. 9-14). |

Elements in the leg^l profession have responded to this 
challenge by devising many new forms of service. The 
new forms both lower the costs of service by incorporating 
economic efficiencies and spread the costs among members



of groups so that no staggering costs fall upon a single 
unfortunate individual. Today’s experiments in providing 
legal service parallel recent changes in the provision of 
medical service. Among the types of programs that might 
be included in the term “group legal service” are club legal 
services, legal insurance, institutions providing legal ser­
vice to further a public cause, legal services as fringe 
benefits of employment or union membership, and neighbor­
hood law offices for the poor (pp. 14-26).

But some state and local bar associations, motivated 
perhaps by the unwarranted fear that new forms of ser­
vice wiU bring about a reduction in the number and amount 
of lawyers’ fees, have charged many of these experiments, 
both in and out of court, with the “unauthorized prac­
tice of law.” They have succeeded in closing down many 
of the programs, and in deterring the establishment of 
others. Even some of the neighborhood legal offices founded 
by the Federal government have been attacked. Although 
only a few of these offices have actually been closed by 
these attacks, their functions have been effectively re­
stricted by pressure from the bar. And although the Illinois 
Supreme Court’s opinion places aid to indigents in a sep­
arate category from group services, we shall show that 
this distinction is unreasoned; it therefore has not pro­
tected, and cannot protect, such assistance from attack 
(pp. 26-34).

The attacks on most of these new experiments should 
not succeed, because services like that provided members 
of the Mine Workers Union are constitutionally protected. 
There is a constitutional right to associate to give and 
receive legal services. In addition, state-imposed restric­
tions on the practice of law, in the absence of harm



8

or the real threat of harm, violate due process. States 
may enforce canons of legal ethics narrowly focused upon 
specific real dangers, but may not, as below, employ broad 
and vaguely stated proscriptions, based on remote hypoth­
eses of harm, to restrict the ways in which lawyers may 
meet the public’s legal needs (pp. 35-45).

A R G U M E N T

Introduction

The essential feature of the Illinois Supreme Court’s 
opinion is its theory that, except in the case of legal 
services to indigents,’ the unauthorized practice of law 
is committed whenever the full burden of paying for legal 
services does not fall squarely upon the client aided.^ This 
theory is based upon faulty reasoning and fails to take 
proper account of the constitutional principles announced 
in NAACP  v. Button, 371 U. S. 415 (1963) and Brotherhood 
of Railroad Trainmen v. Virginia State Bar, 377 TJ. S. 1 
(1964). Unless disapproved in the clearest terms, it could 
help suppress the robust development of legal services now 
taking place in the United States, a development offering, 
for the first time in our history, the possibility of adequate 
legal representation for all persons—regardless of eco­
nomic condition. This brief will survey the dimensions of 
this revolution, will show how the rigid and unthinking

’ The court’s exception lof aid to indigents is unreasoned. As will 
be shown, the court’s reafeoning could be used to attack legal pro­
grams aiding the poor, and in a number of states this has already 
happened. See pp. 27-33, infra.

 ̂United Mine Workers, District 12 v. Illinois State Bar Asso­
ciation, 35 111. 2d 112,117, 219 N. B. 2d 503, 506 (1966).



9

application of canons of legal ethics has served to stifle 
new legal service programs across the country, and wiU 
suggest a principle for accommodating the legitimate in­
terests protected by the canons of ethics with the need for 
new forms of legal services.

A Great Gap Exists Between the Legal Services Am eri­
cans Need and the Legal Services They Can Afford Under 
the Traditional Fee System .

At an earlier period in American history, it might have 
been argued that only the wealthy had need of a lawyer 
to assist with a civil matter. With few exceptions, only 
the wealthy ever got a lawyer. The principal tasks of 
the attorney centered around the sale of real property, 
and persons without property to buy or sell rarely were 
aware of their need for counsel. But in the twentieth 
century, the routine need for legal services became manifest. 
The complexity of our society has increased the occasions 
of our need for legal services and has heightened our 
awareness of the need. In his roles as consumer, lessee, 
vendee or vendor of property, employee, tortfeasor or tort 
victim, the average American frequently enters into com­
plex relations which may be characterized as, or may result 
in, a legal problem. He needs legal advice to recognize and 
vindicate his rights and to prevent his problems from be­
coming more serious. I t is now “difficult to see how any 
person can attain maturity and at no time have need for 
legal advice.” Pye, Bole of Legal Services in the Anti- 
Poverty Program, 31 Law and Contemp. P eob. 211, 217 
(1966).



10

In the area of criminal law, the increase in demand for 
legal assistance has been even more dramatic. The broad­
ened right to counsel established by the decisions in Gideon 
V. Wainwright, 372 U. S. 335 (1963), Miranda v. Arizona, 
384 U. S. 436 (1966), and In  re Gault, 387 U. S. 1 (1967), 
has produced so many requests for aid that already over­
burdened public defenders’ offices have been subjected to 
unprecedented strains.

The legal profession, like the medical profession, has 
been slow to adapt to the vastly increased demand for 
services. We are experiencing a shortage of law schools, 
of lawyers, of judges, of courts. Every court’s calendar is 
severely congested. Unlike doctors, lawyers have not cre­
ated categories of legal assistants with less training than 
their own to administer legal first aid.® And the legal 
profession has rigidly insisted upon the exclusive use of 
a fee system which, together with the low supply and high 
demand, has priced lawyers far beyond what the average 
man can pay. Only the relatively wealthy can affiord 
routinely to consult a lawyer about civil matters. In fact, 
two thirds of lower class and one third of upper class 
families have never employed a lawyer. Masotti and Corsi, 
Legal Assistance for the Poor, 44 J. U rban Law 483, 486 
(1967). And a major legal problem is like a major medical 
problem: one rarely saves in contemplation of such an 
event; yet should one occur, proper legal help may cost

 ̂Law students enrolled in Legal Aid programs are occasionally 
allowed to assist in the representation of clients, but this practice 
is permitted in only fourteen states. Silverstein, A Change of Pace 
Conference on Legal Services, working paper presented to the 1967 
American Bar Association Convention, Honolulu, Hawaii, August 
6, 1967. There is no legal equivalent of the nurse, hygienist, or 
other sub-doctor professional.



11

many thousands of dollars. Only the very rich can atford 
a legal catastrophe.

The profession’s answers to this problem have been legal 
aid to the indigent and, in some types of cases, contingent 
fees. The indigent have suffered most from the unavail­
ability of adequate legal assistance. The poor, in fact, 
probably have more legal problems than most Americans, 
since indigents often have special needs for help in the 
fields of welfare,** landlord-tenant law,® civil rights,® do­
mestic relations,^ consumer problems,® and, of course, 
criminal law. Legal aid societies have never adequately

 ̂The poor often need lawyers to help avail themselves of their 
rights under the Social Security Act and state welfare laws. Rights 
are often denied because welfare procedures are much too slow, 
clients are arbitrarily cut olf, and state programs are administered 
in a way which violates statute and constitutional law, or because 
of human failure on the part of the administrators. Under the 
laws, clients have a right to a hearing on any claims they have, 
but a hearing is a meaningless device to an uneducated indigent 
without benefit of counsel. See Sparer, The Welfare Client’s A t­
torney, 12 U.C.L.A. L. Rev. 361 (1965).

® Victimization of poor tenants by landlords is not uncommon. 
But a tenant whose landlord is violating a building code or who 
is evicting him improperly has no adequate remedy unless he has 
legal help. See Carlin and Howard, Legal Representation and 
Class Justice, 12 U.C.L.A. L. Rev. 381 (1965).

®A person aggrieved by the violation of Titles II  (public ac­
commodations) or VII (fair employment) of the Civil Rights Act 
of 1964, 78 Stat. 243, 78 Stat. 253-266 (1964), requires legal repre­
sentation, as does one seeking enforcement of state civil rights acts 
and court decrees which are resisted.

’’ The poor often have problems in this area, and Legal Aid has 
traditionally been unwilling to assist them in divorce cases. Be­
cause the poor have not been able to have legal assistance, our sys­
tem has been described as a “dual system of family law”, ten 
Broek, California’s Dual System of Family Law, 16 Stan. L. Rev. 
257, 900 (1964), which discriminates against the poor by applying 
different substantive rules.

® A missed payment on an installment purchase usually leads to 
some legal action—sometimes a suit for repossession and accelera­
tion of the balance due. Many employers fire workers whose wages



12

met the needs of the indigent, despite the dedicated ef­
forts of hundreds of Legal Aid attorneys. First, the es­
tablishment of legal aid offices was neither systematic nor 
comprehensive. Only relatively large cities had any offices 
at all; the rural and small-town poor were left unaided. 
Comment, Neighborhood Law Offices: The New Wave in 
Legal Services for the Poor, 80 H aev. L. E ev. 805,807 (1967). 
Even the large cities were not adequately served. In 1962, 
nine cities with populations over 100,000 had no legal aid 
programs, and twenty-four such cities had programs 
which failed to meet the minimum standards of the Amer­
ican Bar Association. Masotti and Corsi, Legal Assistance 
for the Poor, 44 J. U eban L aw 483, 487 (1967). Second, 
the amount of money spent for legal aid was infinitesimal; 
in 1963, it amounted to less than 2/10 of one per cent of 
the money spent that year for all legal services in the 
nation.® Id. at 487-88.

These quantitative deficiencies naturally produced qual­
itative shortcomings. To reduce the potential case load to 
manageable dimensions, legal aid had to set extremely 
low income eligibility standards. I t had to avoid publicity 
and community education, so that not too many indigents

are attached. Even a consumer with a perfect defense has no 
adequate remedy unless he has legal help, and this is true also of 
a consumer who wishes to avail himself of his rights against a 
merchant who sold defective goods or failed to deliver. See Carlin 
and Howard, supra, n. 5.

® Pour million dollars was spent for legal aid in 1963. A budget 
of thirty million dollars Was required in fiscal 1967 to enable the 
new neighborhood legal offices (see pp. 23-24 infra) to serve 400,000- 
600,000 clients. The chairman of the American Bar Association’s 
committee on legal aid has estimated that there are potentially 14 
million indigent eases annually, a volume which would cost between 
300 million and 500 million dollars a year if the service were per­
formed by salaried attorneys. The New York Times, August 7, 
1967, p. 11, col. 1 (late city ed.).



13

would know that its services were available. I t tradition­
ally refused to help in certain types of cases, such as 
divorces and bankruptcies, both because of limited funds 
and because many communities thought of legal aid as 
charity and did not wish it to assist in the vindication of 
rights which were vaguely thought of as immoral. And 
of course, while many talented and self-sacrificing lawyers 
have worked for legal aid, the low salary and status at­
tached to the position of legal aid attorney discouraged 
many others from considering the position, so that often 
a job requiring the talents of a superman was performed 
by a mediocre attorney. Comment, 80 H aev. L. R ev. 805, 
at 807-09.

One other legal service has been generally available 
to a person without resources to hire an attorney. If he 
happens to be a plaintiff, and his complaint happens to be 
for money damages (usually in personal injury cases), a 
client can normally have a lawyer prosecute the case for 
a percentage of the recovery, if successful. At first glance 
the contingent fee seems like low cost legal service, since the 
client who has nothing may end up with a large amount 
of money. Actually the contingent fee is usually a very 
expensive type of legal service. The lawyer gambles on 
recovery and, if successful, shares handsomely in the seem­
ing windfall. But, after all, the recovery is not a windfall, 
but compensation for a loss (often a loss measurable in 
dollars and cents).“  The loss of one fourth to one third 
of this recovery in legal fees is not one that most plaintiffs 
can “afford”, even if it is one they can bear, and contingent

It may be noted that under the tax law, the recovery of dam­
ages for personal injury is not “income.” Int. Rev. Code of 1954 
§ 104.

Contingent fees are further inadequate as a solution because 
even clients who do not prevail must pay the attorney’s disburse­
ments.



14

fee arrangements should not be thought of as a solution 
to the problem of inadequate legal services. And even if 
it were, it is not a solution for the client who is the defen­
dant in a personal injury case, or is threatened with evic­
tion by his landlord, or is sued on a contract. Nor can it 
help the client who needs an injunction, or a divorce, or 
who wants to write a will, change his name, or appeal the 
revocation of his driver’s license. Many millions of people 
are not poor enough to qualify for legal aid or the as­
sistance of a neighborhood legal office, yet not wealthy 
enough to afford legal services they genuinely need.^  ̂ De­
pending upon the complexity of the cases in which they 
find themselves involved, millions or tens of millions of 
Americans are “legally indigent.” For them, creative ele­
ments in the legal profession are developing new forms of 
legal services at substantially lower cost.

n.
Creative Elem ents in  the Legal P rofession  Have Re­

cently Undertaken to D evelop New Form s o f  Practice to  
Satisfy the M anifest Need for More P len tifu l, Efficient 
and Inexpensive Legal Services.

“Group legal services” may be defined as services per­
formed by an attorney for a group with a common problem, 
including a group which has formed to establish a plan of 
prepaid legal service, whether or not the members have a 
common interest in â  particular field of activity."' Read

"" See Cox, Poverty an^ the Legal Profession, 54 III. B. J. 12, 15 
(1965).

This is a simplified version of the more precise definition for­
mulated by the California Bar Association’s Committee on Group 
Legal Services, in their report to the Association. The report is 
the leading work on the subject and is published in 39 Cal. State 
B. J. at 639 (1964).



15

broadly, this definition would include legal aid as a group 
service, since the indigent are a definable group with com­
mon problems, served by a salaried attorney. In the case 
of legal aid, the services are paid for only partly by the 
indigents aided, through their United Fund contributions; 
the rest of society contributes the balance. Since the 1930’s, 
some groups of persons not indigent in the strict sense 
have experimented with plans to provide themselves with 
cheaper legal services, for which they pay the entire cost.

A group service performs several functions. I t informs 
the members of the group that some of their problems 
may be legal ones, and that legal assistance is available. 
I t  may help refer them to one of a panel of attorneys.^® 
But perhaps the most important function of a group ser­
vice is to keep the price of legal assistance within a range 
that members of the group can afford. This is generally 
done in two ways: (1) by spreading the cost of services 
performed over the entire group, rather than allowing it 
to fall upon the member who happens to need a lawyer’s 
help, and (2) by raising the volume of a particular kind of 
work that the attorney performs, thus lowering the unit 
cost of the work. See California State Bar Association, 
Committee on Group Legal Services, Group Legal Services, 
39 Cal. S tate B. J. 639, 662-67 (1964). Increased volume 
and the opportunity to specialize can lower the unit cost 
of work done both by a recommended lawyer who charges 
a fee in each case and a salaried lawyer retained by the 
group itself. In the case of a salaried attorney, however, 
there may be a further reduction in the cost of service, 
in that an attorney who is guaranteed a particular income

As in Brotherhood of Railroad Trainmen v. Virginia ex. rel. 
Virginia State Bar, 377 IJ.S. 1 (1964).



16

in a given year may be willing to accept a lesser aggre­
gate amount than if he had to rely on the relatively 
uncertain income that fees provided*

Early Group Services

Group legal services first became popular in the 1930’s. 
They were frequently offered as one benefit of membership 
in automobile clubs. In a typical instance, members paid 
$10.00 annual dues to the club, and if they were charged 
with a traffic offense or sued for a vehicular tort, they 
could enlist the services either of an attorney on the club’s 
recommended list or of their own choosing. The club took 
no part in the case, but it paid the lawyer’s bill. Em­
ploying reasoning similar to that of the Illinois Supreme 
Court in the present case, the Supreme Court of Massa­
chusetts found that to purchase in advance, for the nom­
inal sum of $10, ah. the legal services that might be needed 
for a year was “utterly at variance with the standards of 
the legal profession, where the fee . . .  is fixed by the nature 
of the work performed, the skill required and the benefit 
accruing to the client.” The service was enjoined. In  re 
Macluh, 295 Mass. 45, 50, 3 N. E. 2d 272, 274 (1936); see 
People ex rel. Chicago Bar Association v. Chicago Motor 
Club, 362 111. 50, 199 N. E. 1 (1935); see also Zimroth, 
Group Legal Services and the Constitution, 76 Yale L. J. 
966, 966-67 (1967).

** Theoretically the risk-spreading function could be performed 
independently of the eostlowering function; members of a group 
could insure against legal costs without seeking the services of 
particular lawyers. But the California Committee on Group Legal 
Services could find no insurance company which was interested in 
developing a group legal insurance plan. 39 Cal. State B. J. 639 
at 720 (1964).



17

Another early group service was the Association of Real 
Estate Taxpayers. Twenty to thirty thousand property 
owners contributed fifteen dollars each to a non-profit cor­
poration which was created to bring test suits to protect 
their property from forfeiture and tax sale. I t  would 
have cost an individual $200,000 to bring such a suit. 
There, as here, the Illinois Supreme Court held that the 
association constituted a lay intermediary, and declared 
the arrangement illegal. People ex rel. Courtney v. Asso­
ciation of Real Estate Taxpayers, 354 111. 102, 187 N. E. 
823 (1933).

The Copyright Protection Bureau fared better in court. 
Eight motion picture distributors organized and made 
contributions to the Bureau. When the Bureau discovered 
an unauthorized exhibition of a picture, its salaried legal 
staff could settle or sue the exhibitor. The court costs of 
the suit were charged to the aggrieved distributor, but the 
lawyers’ salaries were paid by a general assessment 
against all of the members. The Bureau was held not to 
be engaged in the unlawful practice of law. Each member 
had a right to have a legal department to bring suits, and 
the “mere fact it created its agency for the above purpose 
under a trade name does not involve any illegality.” Vita- 
phone Corp. V. Hutchinson Amusement Co., 28 F. Supp. 
526 (D. Mass. 1939). This court, unlike others, did not 
even dwell on the group nature of the arrangement.^®

One author has suggested that this case is distinguishable 
from the Real Estate Taxpayers ease only in that it was brought 
in a federal court. Derby, Unauthorized Practice of Law, 54 Calif. 
L. Rev. 1331,1357 n. 149 (1966).



18

Special Interest Groups
Were it not for tlie early cases declaring group services 

unlawful, the most prevalent form of group services today 
might be those organized by special interest groups whose 
members have a peculiar need for legal assistance; e.g., 
automobile clubs. But the ethical rules invoked by local 
bar associations have impeded the establishment of such 
group services. For example in California, a large so­
cial club whose members belonged to a particular ethnic 
group wished to hire an attorney to assist them with 
their common legal problems, especially those dealing 
with naturalization or their status as aliens. This asso­
ciation was prevented by opposition from the State 
Bar. California State Bar Association, Committee on 
Group Legal Services, Group Legal Services, 39 Cal. 
State B. J. 639, 686 (1964). The California Teachers’ 
Association, however, does provide its members with 
some of the advantages of group service. In cases in­
volving the protection of professional rights, teachers may 
choose their own attorneys and the association will pay 
75% of the fee beyond $50 up to $750. Ibid, at 676.

The only major “professional association” offering rela­
tively comprehensive legal services to its members is the 
United States Army. Under a plan set up in 1943, the 
Army has been providing servicemen and their dependents 
with free legal advice op all civil matters, “from adoption 
to wills”, other than problems dealing with military admin­
istration or justice. .^Ithough the serviceman must have 
a civilian lawyer to gcj to court, all assistance up to that 
point is provided by the program. See Winkler, Legal 
Assistance for the Armed Forces, 50 A.B.A.J. 451 (1964).



19

Defendants’ Liability Insurance

The most widespread form of group service, though 
rarely thought of as such, is the legal assistance given 
defendants in automobile negligence cases by their lia­
bility insurers. The insurance not only protects the insured 
against liability, but against the legal fees involved in 
defending a suit. Typically the insurance company will 
provide an attorney to defend a suit. The cost is borne by 
all the members of the group of insured drivers, as a 
part of the premiums paid. Public liability, defamation, 
and even malpractice insurance also usually cover legal 
fees.

Institutions Promoting a Cause

Institutions which seek to promote a political or social 
cause through litigation typically offer a group legal ser­
vice. They usually retain one or more salaried attorneys 
who prosecute the cases of litigants from the groups 
served, who may or may not formally be members of the 
organization. Amicus NAACP Legal Defense Fund has 
no membership except for its board of directors. With 
its staff of lawyers and funds it raises for itself it has 
provided counsel to more or less clearly defined groups; 
students wishing to attend integrated schools, civil rights 
workers, Negroes seeking equal opportunity for employ­
ment, etc. The NAACP (a membership corporation sepa­
rate and apart from the Defense Fund) is financed in 
part by membership dues, in part by private contributions. 
I t  too has a legal staff. See N.A.A.C.P. v. Button, 371 U. S. 
415 (1963). The American Civil Liberties Union is similarly 
financed, and supplies counsel to litigants in selected civil 
liberties cases.̂ ** Even local bar associations have offered

The Union once participated in eases principally as amicus 
curiae, but now supplies counsel in 80% of its cases.



20

this type of group legal service. In 1940, the Atlanta Bar 
Association established a committee to fight usurious 
lenders. I t advertised that it would provide free legal 
service to anyone who would sue for recovery of pajunents 
made on usurious loans.^^

Corporation Fringe Benefits

Legal service as a fringe benefit of corporate employ­
ment offers limitless possibilities for the extension of low 
cost legal assistance to millions who need it. I t is well 
known that many companies already offer this service to 
their executives. In some cases, staff or retained counsel 
charge the executives a discounted fee or no fee for private 
services; in others, the fee is the usual fee for the service, 
but is billed to the corporation.^® But just as thousands of 
companies now offer prepaid medical service to all em­
ployees, legal aid could be extended either in clinics staffed 
by company lawyers or through recommended or completely 
independent attorneys who would be paid by the companies, 
perhaps charging the clients a small deductible fee. At 
least one company extended this service to all of its work­
ers; during World W ar II, a California defense plant em­
ployed salaried lawyers to handle the personal legal 
problems of its employees. The lawyers aided 3,461 em­
ployees in 1944, and saved the company an estimated 15,364 
man-hours. The program was terminated when the war 
ended, but company officials said it had succeeded in mini-

This practice was upheld against a charge by creditors that it 
was unethical. Gunnels v. Atlanta Bar, 191 Ga. 366, 12 S.E. 2d. 
602 (1940).

This practice, though widespread, is officially considered un­
ethical. See American Bar Association, Informative Opinion of the 
Committee on Unauthorized Practice of the Law, 36 A.B.A.J. 677, 
678 (1950).



21

mizing the objective and subjective effects that legal prob­
lems had on workers. See California State Bar Associa­
tion, Committee on Group Legal Services, Group Legal 
Services, 39 Cal. State B. J. 639, 679-81 (1964).

Union Benefits

A few labor unions have devised a variety of means for 
providing their members with inexpensive legal service. 
This Court examined one of these plans in Brotherhood of 
Railroad Trainmen v. Virginia ex. rel. Virginia State Bar, 
377 U. S. 1 (1964). There the Brotherhood had selected, 
in each region of the country, a lawyer reputed to be honest 
and skillful. When a member was injured, the union would 
advise him to see a lawyer and would recommend the 
lawyer it had selected for that region. The member had to 
pay the fee, but he was assured the assistance of an expert 
in railroad injuries, and since the lawyers selected were 
called upon to perform a high volume of similar work, they 
charged the members somewhat less than the usual fee.̂ ®

The United Mine Workers’ plan, under attack here, seeks 
to do somewhat more. The union retains its own salaried 
attorney, and injured members may choose to avail them­
selves of his services. This type of plan is much less costly 
to the members than that of the Trainmen. Local 12 of the 
Mine Workers has 14,000 members. If  the attorney’s sal­
ary and ofSce expenses amount to $40,000 a year, less than 
$3.00 of each member’s dues is being allocated to “legal in­
surance.” The Mine Workers’ plan spreads the risk of

The Brotherhood and the lawyers agreed that a contingent 
fee of no more than 25% would he charged. When the plan was 
originally established, workers had to pay attorneys contingent 
fees of up to 50%. In re Brotherhood of Railroad Trainmen, 13 
111 2d 391, 393,150 N.E. 2d 163,195 (1958).



22

legal fees among all its members, and reduces aggregate 
costs significantly by employing a salaried lawyer.^"

Bnt even tbe Mine Workers’ plan fails to exploit the full 
cost-reducing potential of group service. For two years 
an affiliate of the New York Hotel Trades Council retained 
a salaried lawyer to advise its members on the full range 
of legal problems that confronted them as members of 
society other than those arising from their employment. 
Most of the work done by the attorney concerned landlord- 
tenant law and wage attachments by merchants. An infini­
tesimal portion of the union treasury was spent on this 
project, but members felt they could consult the attorney 
freely so as to avoid trouble as well as resolve conflict. 
Similarly, it is “not uncommon” in California for unions to 
refer members to the attorney retained by the union for 
its own affairs, and to pay the fees for the first visit. One 
California law firm has agreements with five unions, under 
which it provides service in workmen’s compensation cases 
for all members who wish it, and also gives legal advice 
without charge to members with personal legal problems. 
And for several years in the late 1950’s the Los Angeles 
culinary industry had collective bargaining agreements 
under which management paid an annual sum to a legal aid 
trust fund. A panel of five lawyers gave union members 
legal advice for up to one hour per civil problem and the 
attorneys were reimbursed from the trust fund at the rate 
of twenty dollars per/hour. Most of the problems han-

Another “single issue 
York State locals of the 
Union. Lay advocates on

’ service is provided memhers of the New 
International Ladies Garment Workers 

the union’s staff represent union members 
before administrative panels in contested claims for unemployment 
compensation. Union lawyers take appeals to court if necessary. 
The service costs each member pennies a year; each case would cost 
many hundred times that sum if handled by an outside lawyer.



23

died by the panel centered around debtor-creditor and 
landlord-tenant relationships, and automobile accidents. 
See California Bar Association, Committee on Group Legal 
Services, Group Legal Services, 39 Cal. S tate B. J. 639, 
670-75 (1964).

Legal Assistance Associations

A major recent development in the extention of legal 
services is the Legal Services Program sponsored and 
largely financed by the United States government’s Office 
of Economic Opportunity. This program is designed to 
expand the resources available to indigents by improving 
on the legal aid concept. The “neighborhood law office” is a 
key innovative feature. Over six hundred of these offices 
have been established in communities of every size across 
the nation. Unlike most legal aid offices, the neighborhood 
offices are located in the residential districts they serve, 
not downtown. They are therefore far more accessible to 
the poor, many of whom rarely leave their neighborhoods. 
They are often situated in community action centers which 
offer a variety of services, so that doctors and social work­
ers may easily refer to lawyers clients who do not realize 
their problems are legal. The neighborhood offices employ 
salaried attorneys, who attempt to convince neighborhood 
residents that they are on their side, that they are their 
advocates—even against government agencies. The attor­
neys engage in community organization and legal education. 
They give indigent clients advice on nearly all legal prob­
lems, including matrimonial problems, and go to court 
whenever necessary. Neighborhood offices also differ from 
legal aid in that they are not reluctant to take appeals when 
the client so desires. Legal aid seldom succeeded in press­
ing precedent-making cases, because understaffing required



24

that nearly all cases be settled, and in those that did go to 
trial, the small sums involved did not justify the expenses 
of appeal. But since the neighborhood attorney sees his 
role as advocate for both the client and the neighborhood 
(when their interests coincide) he is less likely to discourage 
an appeal. See generally Comment, Neighborhood Law Of­
fices: The New Wave in Legal Services for the Poor, 80 
H aev. L. E ev. 805 (1967); Ofeice of E conomic Oppoktu- 
NiTY, T he P ooe Seek J ustice (1967); Office of E conomic 
Opportunity, F irst A nnual E eport of the L egal Services 
P rogram to the A merican Bar A ssociation (1966); U nited 
States Department of H ealth, E ducation and W elfare, 
Conference P roceedings: T h e  E xtension of L egal Serv­
ices to the P oor (1964); Office of E conomic Opportunity, 
National Conference on L aw and P overty (1965). See 
also Cahn and Cahn, The War on Poverty: A  Civilian 
Perspective, 73 Yale L. J .  1317 (1964).

While the neighborhood office is a novel concept, it is 
by no means the only experimental feature of the program. 
In fact, “there is no such thing as a ‘standard’ legal serv­
ices program. Innovation is encouraged and is limited 
only by the ingenuity of the developers of a proposal.” 
Office or E conomic Opportunity L egal Services P rogram, 
GumELiNEs 4 (1966). On New York City’s Lower East Side, 
mobile law offices in trailers search out those so poor and 
uneducated that even a neighborhood office is too far away. 
Office of E conomic Opportunity, T he  P oor Seek J ustice 
8 (1967). And in northern Michigan, attorneys for the poor 
have offices in six towns and ride circuit through areas too 
sparsely populated to support their own neighborhood 
offices. Office of E conomic Opportunity, F irst A nnual 
iEPORT OF THE LeGAL SERVICES PROGRAM 14 (1966). In



25

Northern Wisconsin, a program called Judicare is being 
tested: Indigents take their problems to any attorney, and 
the government will pay the fee, which is not to exceed 
80% of the State B ar’s minimum fee schedule. Preliminary 
data indicate that this program costs at least 50% more 
than a neighborhood office program of similar scope. Com­
ment, 80 H abv. L. E ev. 805, 849 (1967).^^

Another remarkable experiment of the legal Services 
Program is the use of lay advocates to assist with minor 
problems. “Not every injury requires a surgeon; not every 
injustice requires an attorney . . .  We need what is, in ef­
fect, a new profession of advocates for the poor . . . That 
job is too big—and, I would add, too important—to be left 
only to lawyers.” Nicholas deB. Katzenbach, in Depart­
ment OP H ealth, E ducation and W elfare, Conference 
P roceedings: T he E xtension op L egal Services to the 
P oor (1964). The Dixwell Legal Eights Association in New 
Haven, Conn., for example, employs and trains indigents to 
assist their own neighbors to vindicate their rights. The lay 
advocates appear for their clients in informal administra­
tive hearings before Welfare Department personnel when 
welfare rights have been denied. The program’s goal is to 
prevent problems from becoming so complex that the serv­
ices of a lawyer are required. But if a laivyer is needed, 
clients are referred to the New Haven Legal Assistance 
Association.

The advantages for urban areas of a salaried neighborhood 
lawyer rather than Judicare have been compiled by Judge Ray­
mond Pace Alexander: Judicare leaves the poor to the yellow 
pages for names of lawyers; neighborhood ofBces can train spe­
cialists, watch patterns of cases and bring test suits, draft legisla­
tion, and provide comprehensive service. In  re Community Legal 
Services, Inc., :fp4968, Common Pleas # 4  (March Term, 1966).



26

Finally, the Office of Economic Opportunity contemplates 
that the indigent may some day be served by groups which 
they themselves form.^^ As poverty is eradicated, the in­
dependently financed neighborhood offices may be gradu­
ally transformed into classic group services.

III.

The Rigid Em ploym ent o f  the Canons o f  Ethics by  
State and Local Bar Associations to Throttle These New  
Form s Is Retarding Progress Toward Satisfying the 
M anifest Need for Services.

In 1966, F. William McCalpin, chairman of the Ameri­
can Bar Association’s Special Committee on Availability 
of Legal Services, wrote that Button and Trainmen had 
brought to light many apparently long existing, though 
suh rosa, group legal service plans. He cited as an ex­
ample the service offered its members by tlie New York 
Hotel Trades Council, described in the previous section. 
“Although protests have been made by some segments of 
tlie organized Bar,” he wrote, “in today’s climate the ef­
fect of such protestation is doubtful.” McCalpin, A  Revo­
lution in the Law Practice, 15 Clev.-Mab. L. Rev. 203, 205 
(1966). The organized Bar has done more than protest. 
The disciplinary conunittee of tlie New York Coimty Law­
yers Association, by inRiating an investigation of the Hotel 
Trades Council program, succeeded in closing it down.

“ If. despite the indigency of its individual members, a group 
can afford to hire an attiorney. neighborhood offices may refuse to 
provide free counsel: thus a means test is applied to groups as 
well as individuals. Office of Ecoxoauc Oppojsrrxrxx, Lesal 
i^svicES Pso«i£Air. GruJELijrES 21 .̂1966).



27

When its salaried attorney resigned to take another job, 
the nnion conld not find another lawyer willing to fill the 
position, given the threat of disciplinary proceedings and 
possible disbarment. The Lawyers Association contended 
that the group nature of the service might violate ethical 
principles, and would not accept the union’s claim that 
its activities were protected by the rationale of Trainmen. 
The union’s regular attorney says that but for the threat 
of proceedings by the Bar, filling the position would have 
been very easy.

Bar opposition to programs extending legal service must 
come as no surprise to this Court. In NAAGP  v. Button, 
the Court considered the Virginia Bar Association’s op­
position, on ethical grounds, to an offer of service by the 
salaried attorneys of a group promoting a cause by means 
of litigation. In Brotherhood of Railroad Trainmen, the 
Court encountered the Virginia B ar’s labeling of a union re­
ferral plan as “unauthorized practice.” Despite the Court’s 
opinions in those cases. Bar associations have, if anything, 
intensified their attacks on group services for “unauthor­
ized practice.” Bar opposition to group service for the 
social club of immigrants in California is one instance. 
What happened to the Hotel Trades Council is another. 
The Illinois Mine Workers Case is another.

The accusation of “unauthorized practice” has even 
been leveled at some of the neighborhood law office 
programs sponsored by the Office of Economic Oppor­
tunity. In a number of cities, bar associations have 
gone so far as to challenge the programs in court. In 
the District of Columbia, for example, a suit against 
the legal assistance project has been pending for over 
a year. Harrison v. United Planning Organization, Civ. 
#2282-65 (D. C., D. C.). A temporary restraining



28

order was secured against the California Rnral Legal 
Assistance Association in Stanislaus County; the order 
expired, hut the Association is now defending a suit 
on the merits. Stanislaus Co. Bar. v. California Rural 
Legal Assistance, #93302 (Superior Ct., Stanislaus Co. 
(1967)). In Houston, the courts refused to enjoin the pro­
gram, finding it to be within the “charity” exemption of 
Canon 35. Touchy v. Houston Legal Foundation, Hoc. 
#4636 (Ct. Civ. App. 1967). A suit by four bar associa­
tions is pending in Florida, Trautman v. Shriver, #66-188- 
ORL Civil (D. C., M. D. Fla.), and a private attorney sued 
the local program in Roanoke Valley, Va., Jones v. 
Boanohe Valley Legal Aid Society, #8986 (Hustings Ct., 
Roanoke, 1967), hut recently took a voluntary nonsuit. 
In other instances, courts in nonadversary proceedings 
have disapproved on grounds of ethical impropriety as­
pects of the programs.^^

In Onandaga County, New York, the statute permitting chari­
table corporations to handle civil cases was in June, 1967, held to 
preclude legal assistance from giving advice or aid in juvenile or 
criminal cases. Matter of PinTcert, #299 (App. Div., 4th Dept, 
June 29, 1967). Pennsylvania and New York State require chari­
table corporations which propose to practice law to obtain court 
approval. Community Legal Services of Philadelphia was warmly 
endorsed by the Court despite objections from some members of 
the bar. In re Community Legal Services, Inc., #4968 (Common 
Pleas #4 , March Term 1966). But legal assistance in New York 
City suffered a very serious setback when the New York Appellate 
Division disapproved its cjiarter. The proposed association would 
have had twenty directors: 13 lawyers and seven representatives 
of the poor. This would have conformed with the requirement in 
the Economic Opportunity Act that “the poor must be represented 
on the board or policy-mSaking committee of the program to pro­
vide legal services.” Oitfice of E conomic Opportunity Legal 
Services P rogram, Guidelines 11 (1966); see 75 Stat. 516 (1964). 
This was one feature of the program objected to by the court. The 
attorney. In  re Community Action for Legal Services, Inc., 26 
court seemed to say that a program would commit unauthorized 
pt^cCtice unless every member of the board of directors were an



29

In  some other cities, bar groups have effectively opposed 
the neighborhood law office programs without actually go­
ing to court. What happened in New Haven is illustrative. 
During 1963, the Legal Aid Committee of the New Haven 
County Bar Association approved the plans for the forma­
tion of the New Haven Legal Assistance Association, 
although the issue was never formally presented to the 
Bar Association in a general meeting. In 1964, as the 
Legal Assistance Association was preparing to begin op­
erations, it informed the Bar candidly of its plans. In an 
extremely bitter meeting of the County Bar Association 
on November 16, 1964, after a debate centering around 
the need for the program and the concept of unauthorized 
practice, the Bar Association voted to go on record “as 
opposing the entire program.” V eebatim P roceedings, 
Meeting oe the New H aven County B ab A ssociation, No­
vember 16, 1964 (copy on tile in the Yale Law L ibrary); 
see Parker, The Relations of Legal Service Programs with 
Local Bar Associations, in Office of E conomic Opportu­
nity, National Conference on L aw and P overty 126 
(1965). The Connecticut State Bar Association subse­
quently found the program consistent with the Canons of 
Ethics, and the neighborhood law offices were opened, but 
the county bar has continued to challenge the propriety 
of the program. Defending the program before commit­
tees of the County Bar Association has consumed much 
of the neighborhood lawyers’ time; the program’s execu­
tive director estimates that during the program’s first

App. Div. 2d 354, 361, 274 N.Y.S. 2d 779, 787-88 (1966). As a 
result of this ease, New York City’s legal services program, though 
approved and funded by the federal government in July 1966, is 
not yet in operation (although a few neighborhoods do have 
minuscule services).



30

year of operations, one third of his time was spent nego­
tiating with the local bar. Thus even where legal assistance 
programs prevail, ethical challenges by local bar associa­
tions can have serious adverse effects on their ability to 
fulfill their intended purposes.

Furthermore, although actual attacks have been spo­
radic, legal assistance programs everywhere have had to 
make two major concessions to the organized bar. First, 
the federal program ignores the concept of “legal in­
digency” i.e., of indigency in relation to the costs of a 
particular case. Instead, a rigid means test is imposed. 
A family of four with an income of $5200 per year may not 
take advantage of the program, even if hiring a lawyer to 
help them would cost several hundred or even several thou­
sand dollars. In  some rural areas the qualifying income 
level is $2000. For a single person, the eligibility level 
ranges from $1200 in rural areas to $3380 in a few cities. 
Offick of E co^tomic OppoBTtrsrrx, Fmsx A sxttal B epobt 
OF TTTK T.f>v\t. Sebvices P bogbam 9 (1966). Second, neigh­
borhood law offices may not provide free legal advice in  
eases wMeh a lawyer would handle for a contingent fee, 
notwithstanding that a contingent fee may reduce signifi­
cantly a much needed compensatory recovery. “The test 
should be whether the client can obtain representation.” 
Ottics of Ecovomc OppoBTrxrrr. L egal S ebvices P bo- 
6SA3I. GrtT'FiivFS 20 (1966). These two rules assuage the 
Bar's dominant concei^: that neighborhood law offices not 
take business from lo êal attorneys. That concern is  re- 
devtod in the reasoning by which the Canons o f Ethics 
and the Elino's Supijeme Cotirt j*ut programs assisting  
~iadlgents~ in a special category. Enfortimately, these 
Twv» rules s e v e n s  limit the wnvs in which the neighbor-



31

hood law offices could help fill the unsatisfied need for legal 
services at a cost that most families can afford.

I t may at first seem odd that despite the two rules limit­
ing the scope of legal assistance associations, and despite 
Canon 35’s specific exemption of programs aiding indi­
gents, and despite the American Bar Association’s warm 
endorsement of the federal neighborhood law office pro­
gram, local bar groups have continued to make ethical 
attacks on legal assistance to the poor in every part of 
the country. But this phenomenon should not be too sur­
prising. Local bar associations are often dominated by 
independent practitioners whose annual profits are often 
much in doubt and who fear even a slight loss of clientele 
to free assistance programs. In New Haven, all of the 24 
lawyers in attendance from firms of over 10 voted to sup­
port the program, but single practitioners voted 111-33 to 
oppose it. Parker, The Relations of Legal Service Pro­
grams with Local Bar Associations, in Office of E coftomic 
OppoETXjifiTY, National Confeebncb on L aw and P oveety 
126, 131 (1965). See also Caelin, Lawyees on theie Own 
(1962); Caelin, Lawyees E thics 23-36 (1966) (clientele of 
solo practitioners and a statistical profile of the New York 
County Lawyers Association). And “it is not safe to as­
sume that members of the local bar or leaders of the local 
bar association have any knowledge of, or sympathy for, 
the cause of legal aid in its traditional form or of the 
pronouncements of the American Bar Association or of the 
state bar association on the subject, let alone any knowl­
edge of, or sympathy for, a program of extended legal 
service.” Parker, The Relations of Tjegal Service Pro­
grams with Local Bar Associations, in Office of E conomic 
Oppoetunity, Nationai. Confeeknce on I jaw and I’ovuety 
126 (1965).



32

Further, the exception contained in Canon 35 and in 
the opinion of the Illinois Supreme Court cannot really 
protect service for indigents from ethical attack, for it is 
founded upon no logic whatsoever. The Illinois Court 
fears a possible conflict of interest which might divert a 
salaried attorney’s true loyalty from his client to the union 
executive board which controls his paycheck. But a 
neighborhood lawyer’s hypothetical conflict of interest is not 
a whit different. He is bound to serve his client, but his 
salary is paid either entirely by the federal government, 
or, in most cases, 90% by the federal government and 
10% by a local public or private fund. And he is responsi­
ble to an executive committee which hired him, an execu­
tive committee perhaps more interested in questions of 
legal policy than the executive board of the Mine Workers 
Union. Given the rationale of the Illinois court’s opinion, 
no legal assistance program can feel assured that a court 
will not carry it to its logical conclusion. In fact, the 
reasoning of the Illinois court threatens legal assistance 
even more than it does classic group service, since typically 
a member of a group plan has some control over the hired 
attorneys, some voice, directly or indirectly, in how his 
money is spent. By contrast, indigents have only the most 
remote control, as voters in federal elections, over the op­
erations of the Legal Services Program.^^ The fragility 
of the exemption for programs aiding indigents is made

In addition, indigent may have a degree of control through 
representatives of the poor on the programs’ policy boards, but 
those representatives neeq not have voting power, much less ma­
jority voting power, and in many areas the provision of the statute 
requiring such representotion is not being complied with. See 
Comment, Participation of the Poor; Section 202(a)(3) Organi­
zations Under the Economic Opportunity Act of 1964, 75 Yale 
L. J. 599 (1966).



33

further evident by the obvious truth that indigents no less 
than wealthy men deserve the complete loyalty of their 
attorneys.

Confusion over the scope of the constitutional rights 
described in Button and Trainmen has rendered vulnerable 
the entire spectrum of new group services, from corporate 
and union fringe benefits and facilities of private associa­
tions to the neighborhood law offices sponsored by the fed­
eral government. The nature of these rights must now be 
clarified so that lawyers may continue the great experi­
ments they have begun in expanding legal service in the 
United States. Canons of Ethics inappropriate to modern 
needs should not be permitted to stifle these efforts.

In 1964, a committee of the California State Bar Asso­
ciation recommended that the Rules of Professional Con­
duct be amended to allow, with appropriate safeguards, 
the institution of group legal service plans, including plans 
under which groups hired salaried attorneys, California 
State Bar Association, Committee on Group Legal Serv­
ices, Group Legal Services, 39 Cjvl. State B. J. 639, 723-26 
(1964). A few months ago, the Board of Governors of 
the California Bar “noting {Trainmen and Button] never­
theless concluded that it is not in the interest of the public 
or the administration of justice to apply the principles of 
those decisions to legal service plans at the expense of 
certain Rules of Professional Conduct. Except as they 
conflict with the Supreme Court decisions, these rules will 
continue to be enforced.” State B ar of California R e­
ports, May-June, 1967, p. 1, col. 1. Among the reasons 
given by the Board was that modification of the Rules 
would be “premature” in view of the pendency of this case. 
Ihid. The American Bar Association, too, is seeking



34

guidance as to the extent of the rights established by this 
Court’s earlier decisions. Partially as a result of the shock 
which the Association received in T ra in m e n ,it established 
a Special Committee on Evaluation of Ethical Standards. 
See Cheatham, A Be-evaluation of the Canons of Profes­
sional Ethics, 33 Tenn. L. Rev. 129, 130 (1966). The deci­
sion in this case may have even a more profound effect 
than Trainmen on the availability of legal service in 
America. “The crucial importance of this case cannot he 
minimized. Many unauthorized practice cases have been 
of vital concern to specific areas of the unauthorized prac­
tice movement, but this case above aU holds the key to 
how, and in Avhat manner, attorneys are to practice law in 
contemporary times.” American Bar Association, Stand­
ing Committee Unauthorized Practice of the LaAV, Current 
Report, 32 U xauthoeized P ractice News 56, 65 (1966).

" tsir jkKised in the petitkai
atiKi. Kas Cnars dsfJiKd. Saw  Bdtr A«;i_



35

IV.

There Is a Constitutional Right to Associate to Give 
and Receive Legal Services W ithin Any Institutional 
Fram ework W hich Adequately Protects Clients From  
Injury. The Im plem entation o f  This Right Is W holly  
Consistent W ith the Fulfillm ent o f  the M ission o f  the  
Canons o f  Ethics and the R ecognition o f  New Legal 
Form s to Meet New Legal Needs.

States have a legitimate interest in protecting persons 
who seek legal advice from being defrauded, from being 
assisted by persons incompetent to deal with their prob­
lems, and from being victimized by lawyers unable to ac­
cord them their complete loyalty. The protection of these 
interests has been the traditional mission of the Canons of 
Ethics. But where there is no danger of injury, we submit, 
potential clients have a right to associate to receive legal 
services, and lawyers have a right to provide those serv­
ices, regardless of whether the lawyer charges the client a 
fee. The ethical rules against unauthorized practice, cor­
porate practice, and lay intermediaries were not written 
to harass lawyers wishing to experiment with systems of 
payment other than the fee and should not be so employed 
by respondents and other bar associations today. These 
rules, and the valid interests they protect, are fully recon­
cilable with the constitutional right to associate to bring 
or defend a lawsuit.

There i$ a constitutional right to associate to bring 
or defend a lawsuit.

In N.A.A.C.P. V. Button, this court reviewed a form of 
group legal service perform îd by (jmu:us NAACP Le.gal 
Defense Fund and the NAACP, two institutions which



36

pursue a social cause by means of litigation. In the ar­
rangement to which the Court accorded constitutional 
protection, the NAACP had hired a staff of fifteen Virginia 
attorneys, who were paid at a per diem rate of up to sixty 
dollars a day plus expenses, a sum smaller than the com­
pensation ordinarily received for equivalent private pro­
fessional work. 371 U. S. at 420-21. Like the Mine Work­
ers, members of the NAACP received a particular kind of 
legal service at a cost much lower than that which would 
prevail under a fee arrangement, and they paid for it in 
advance, indirectly, through payment of dues to the asso­
ciation.^® I t  is true that the main issue in that case was 
solicitation rather than group services, and the Court read 
the Virginia decree broadly as proscribing “any arrange­
ment by which prospective litigants are advised to seek 
the assistance of particular attorneys,” not only the plan 
actually employed by the N.A.A.C.P. But the Court, 
clearly aware that the attorneys were paid per diem by the 
Association, see 371II. S. at 420, and that the organization 
was “financing litigation,” 371 U. S. at 447 (concurring 
opinion of Mr. Justice White), explicitly stated that “here 
the entire arrangement employs constitutionally privileged 
means of expression” 371 II. S. at 442 (emphasis added). 
In addition, the Court stated that “nothing that this record 
shows as to the nature and purpose of NAACP activities 
permits an inference of any injurious intervention in or

In Button, most of/ the attorneys received their compensation 
for each day of service rendered, rather than for each year, but 
there, as here, the money came from the association, not the client. 
And the general counsel of the NAACP who directed the litiga­
tion did receive an anm al salary, as did all of the stalf attorneys 
of the NAACP Legal Defense Fund.



37

control of litigation whidi would constitutionally author­
ize the application of [the Virginia statute].” 371 U. S. at 
444 (emphasis added). In other words, neither the mere 
fact that the group paid the attorney serving its members, 
nor the 'possibility that the group would have an interest 
in establishing a precedent which would he contrary to an 
individual client’s interest,^’ was sufficient to support the 
state’s claim of a supervening state interest.^® The Court 
noted the total absence of a demonstrated actiml conflict 
of interest: “the aims and interests of NAACP have not 
been shown to conflict with those of its members and non­
member Negro litigants.” 371 IJ. S. at 443. And it must 
be noted that the plan held to be protected in Butto'n was 
not one falling under any exception for assistance to in- 
digents; although most of the clients could not afford the 
high costs of complex litigation, there was no indication 
that they were indigent by any ordinary standard.

The Illinois Supreme Court sought to distinguish Butto'n 
on the ground that the civil rights litigation which the 
N.A.A.C.P. encouraged was entitled to some special con­
stitutional protection, which “cannot as such he equated 
with the bodily injury litigation with which we are con­
cerned here.” 35 111. 2d 112, 123, 219 N. E. 2d 503, 509 
(1966). Indeed, some language in the Butto'n opinion sup­
ports this reading. See 371 U. S. at 431. But the Tramnie'n 
case demonstrates that constitutional protection of the

Compare Mr. Justice Harlan’s dissenting hypothetical, 371 
U.S. at 462, with the Illinois Supreme Court’s hypothetical, 35 111. 
2d 112, 121, 219 N.E. 2d 503, 508 (1966).

This Court has also noted, in Tramnie'n, that British unions 
“retain counsel to represent members in personal lawsuits, a prac­
tice similar to that which we upheld in Butto'n.” 377 U.S. at 7.



38

associational right to litigate does not depend on the sub­
ject matter of the group’s litigation. Vindication of fed­
eral statutory rights, as in Trainmen, state statutory 
rights, as here, and common law rights are equally im­
portant social objectives. Tort suits are of public concern 
both as vindication of rights and as a means of changing 
the law affecting the entire public. “ [T]rivate suits atfect 
the public in all cases, not just the big ones. In deciding a 
tort case, a court sets its course in future torts cases. 
Every future tort claimant is affected, as is every insur­
ance company, and therefore every policyholder. As the 
circle gets larger the effect diminishes, but the cumulative 
effect of the torts cases on the public is great.” Zimroth, 
Group Legal Services and the Constitution, 76 Yale L. J. 
966, 989 (1967). The pecuniary motives of the tort plain­
tiff do not diminish the public importance of his suit; as 
Zimroth points out, N.A.A.C.P. members suing for inte­
grated schoolrooms may have desired for their children 
the pecuniary advantages of a better education. Ihid. It 
therefore appears that the members of the Mine Workers 
Union, no less than the members of the NAACP, have a 
constitutional right to join together to hire a lawyer to 
promote their interests by giving them legal advice and 
assistance.

Lawyers have a constitutional right to work for a group 
on a salary basis in the absence of a showing of actual 
danger of injury to clients.

Fourteenth Amendment theory for reversal of the deci­
sion below may be formulated in another way. This Court 
has long held that the “liberty” protected from state action 
by the due process clause includes freedoms not specifically 
enumerated in other sections of the Constitution. “While



39

tMs court has not attempted to define with exactness the 
liberty thus guaranteed, the term has received much con­
sideration, and some of the included things have been defi­
nitely stated. Without doubt, it denotes not merely free­
dom from bodily restraint, but also the right of the in­
dividual . . .  to engage in any of the common occupations 
of life. . . . ” Meyer v. Nebraska, 262 U. S. 390, 399 (1923), 
citing dictum in the Slaughterhouse Cases, 83 U. S. (16 
Wall.) 36 (1872). At the time that Meyer was decided, it 
was held that “this liberty may not be interfered with, 
under the guise of protecting the public interest, by legis­
lative action which is arbitrary or without reasonable rela­
tion to some purpose within the competency of the state to 
effect.” 262 U. S. at 399-400. In recent years the Court has 
refined this doctrine: today “ [w]here there is a signifi­
cant encroachment upon personal liberty, the State may 
prevail only upon showing a subordinating interest which 
is compelling.” Griswold v. Conn., 381 U. S. 479, 497, 504 
(1965) (concurring opinions of Mr. Justice Goldberg and 
Mr. Justice White), Bates v. Little Bock, 361 U. S. 516, 
524 (1960). See McLaughlin v. Florida, 379 U. S. 184, 196 
(1964): where the state police power trenches upon a con­
stitutionally protected freedom, “ [s]uch a law, even 
though enacted pursuant to a valid state interest, bears a 
heavy burden of justification, as we have said, and will be 
upheld only if it is necessary, and not merely rationally 
related, to the accomplishment of a permissible state 
policy.” Thus the right to engage in the practice of law,

In McLaughlin, the Court was dealing with a liberty protected 
by the equal protection clause, not an unenumerated freedom. But 
this distinction is not significant, for the unenumerated liberties 
are as fundamental as those which are listed. See the concurring 
opinion of Mr. Justice Goldberg in Griswold v. Conn., 381 U.S. at 
486.



40

like the right to pursue any other occupation, is one which 
the state may regulate and control, but it may not do so 
merely on the basis of remote hypotheses of potential 
harm. Eegulation must be necessary to the protection of 
the state’s residents. See McLaughlin v. Florida, supra, 
379 U. S. at 197 (concurring opinion of Mr. Justice 
Harlan).

This rule does not require the courts to act as super­
legislatures sitting in judgment on the wisdom of state 
regulatory legislation. The task of the courts is merely to 
judge whether the justifications which the state offers for 
its controls are genuine, realistic fears of harm, or simply 
makeweight arguments devised to shore up vague and in­
substantial, or illegitimate, or non-existent state policies. 
This is a function which courts have been performing 
routinely for years. In Meyer, Nebraska offered as a 
justification of its ban on instruction in German that the 
law would promote civic development and enable the chil­
dren to become citizens of the most useful type, yet the 
Court found this to be “no adequate reason” in time of 
peace. 262 IJ. S. at 401-402. In McLaughlin, the state 
argued that its anti-cohabitation law was designed to pre­
vent breaches of the basic concepts of sexual decency, but 
the Court saw no reason why the particular statute, one 
which infringed upon personal liberty, was necessary. In 
Schware v. Board of Laiv Examiners, 353 U. S. 232 (1957), 
a case dealing with the right to practice law, see 353 U. S. 
at 239 n. 5, the state sought to prevent Schware from prac­
ticing law because he had used aliases, had been arrested 
several times, and had been a member of the Communist 
Party, yet the Court held that “there is no evidence in the 
record which rationally justifies a finding” that he was 
morally unfit. The court noted that the State had ample



41

means to discipline Schware if lie were to engage in real 
misconduct, but that it was improper for the state to infer 
from his record that he would cause actual injury to his 
clients or anyone else. 353 U. S. at 246-247, 247 n. 20. The 
state in Griswold offered several possible justifications 
for its law proscribing the use of contraceptives, but even 
the argument from administrative convenience was de­
scribed as “fanciful.” 381 U. S. at 506 (concurring opinion 
of Mr. Justice White). “At most the broad ban is of mar­
ginal utility to the declared objective.” 381 U. S. at 507 
(concurring opinion of Mr. Justice White). Finally, in
the recent case of Fenster v. L eary,----- 1ST. T . ------ (Court
of Appeals, July 7, 1967), the New York Court of Appeals 
considered the state’s argument that the New York va­
grancy law was necessary to “prevent there coming into 
existence a ‘class of able bodied vagrants . . . [supporting] 
themselves by preying on society and thus [threatening] 
the public peace and security.’ ” But the Court had no 
trouble in determining that the statute punished conduct 
“which in no way impinges on the rights or interests of 
others and which has in no way been demonstrated to have 
anything more than the most tenuous connection with 
prevention of crime and preservation of the public order,” 
and it ruled that the law was an unconstitutional depriva­
tion of due process.

In a sense, these cases represent the sometimes feared 
return of “substantive due process.” Cf. McCloskey, Eco­
nomic Due Process and the Supreme Court—An Exhuma­
tion and Reburial, 1962 S. Ct . E ev. 34, 59-62 (1962). If so, 
they demonstrate that if kept within proper bounds, the 
doctrine is not unmanageable. The judicial process is fully 
competent to distinguish real from imagined harm. In any 
event, the present case requires no extension of the doc-



42

trine beyond its present bounds. In  Meyer, the Court up­
held the right of a teacher to teach in the language he chose 
to willing students, in the absence of real injury to anyone. 
In Griswold, the Court protected the right of a doctor to 
give birth control information to his patients, in the ab­
sence of demonstrated harm. Surely an attorney has a 
corresponding right to provide legal services to willing 
clients, for a fee, for a salary, or for nothing at all, unless 
the state can show that his doing so leads to a more than 
speculative danger of injury.

Under either constitutional theory, the state’s 
legitimate interest in protecting clients from 
injury may be reconciled with satisfaction of the 
clients’ needs for legal services.

The Illinois Supreme Court suggests that lawyers should 
be allowed to provide group legal service to indigents, but 
not to clients who are able to pay. This rule serves only 
one principle: that the organized bar should keep all pay­
ing clients and leave those who cannot pay to the govern­
ment, private charity, and those attorneys who will volun­
teer their time.®° I t  does not even pretend to protect from 
abuse those for whom group service would be permitted. 
I t is impractical because, as has been pointed out,®̂  there 
is no sharp line between indigents and non-indigents.^^ 
And, most importantly, it turns its back on the demon­
strated need for new forms of legal serviees.^^

See pp. 30-31, supra.
See pp. 10-11,14, 3Q, supra.
I t may be noted that persons in a middle income bracket may 

take advantage of the British Legal Aid system and pay a portion 
of the costs. See Utton, The British Legal Aid System, 76 Yalje 
L.J. 371, 375 (1966).

See pp. 9-14, supra.



43

Another mle is implicit in the Illinois court’s opinion: 
look to the nature of the proposed institution, and, if an 
evil can be conjured, the state may proscribe the arrange­
ment. Thus the court stated that, “\_c'\onceivably, the in­
terest of the former [union] might he best served by utiliz­
ing a particular case as a testing vehicle for appellate re­
view of untried legal theories in the hope of securing a 
determination beneficial to union members collectively in 
future litigation, whereas the injured member may prefer 
a proffered settlement deemed wholly adequate to him.” 
35 111. 2d 112, 121, 219 N. E. 2d 503, 508 (1966) (em­
phasis added). The state bar association did not allege 
one instance of this type of conduct. In fact, the opinion 
reveals that the general practice of the union attorney was 
to reach the best settlement possible for the client and then 
suggest that the client accept it. The court’s a priori style 
of reasoning is, however, rather common in this field. An 
American Bar Association committee, commenting on the 
practice of corporations offering their employees legal 
services as fringe benefits, has said, “whether the attorney 
is paid for his services by the corporation, whether the 
work for the individual is included in his general corpo­
rate retainer, or whether he is paid at all, is unimportant. 
The fact is that the services, in such cases, are rendered 
because of the attorney’s employment by the corporation, 
and the vice is that there is a divided allegiance.” Ameri­
can Bar Association, Informative Opinion of the Commit­
tee on Unauthorized Practice of the Law, 36 A. B. A. J. 
677, 678 (1950). Other vague horribles have been imag­
ined: “What is the position of the union member using 
the union lawyer, or of the employee using the employer- 
furnished lawyer, if he should become involved in a scan­
dalous matrimonial situation . . . from which the organiza­
tion’s lawyer must learn of reprehensible traits or conduct 
. . . ? And what is the position of the group-supplied law-



44

yer?” Eeisler, Legal Services for All—Are New Ap­
proaches Needed?, 39 N. Y. S. B. J. 204, 208 (1967).

Against these speculations might be measured the 
equally plausible conflicts of interest inherent in present 
methods of representation. A contingent fee lawyer, for 
example, might be under enormous pressure to settle a 
case for nine hundred dollars, if it would take only an 
hour to reach such a settlement, rather than spend several 
days litigating it although his client is likely to be awarded 
twice that amount. Such a lawyer would perhaps press 
his client, against his best interests, to accept such a settle­
ment.

In  a leading article, Zimroth has pointed out that all 
such speculation contradicts the normal assumptions which 
must be made about the legal profession. We do not 
assume that a lawyer defending an antitrust ease for a 
small client will sacrifice his clients’ interests to those of 
other, larger clients who may want a contrary precedent. 
Nor do we assume that he will allow his personal desires 
or associations, or the causes he espouses, or the desires 
of other members of his partnership, to interfere with his 
service to his client. When abuse does take place, it will 
not be hard to detect, for dissatisfied clients will complain. 
Zimroth, Group Legal Services and the Constitution, 76 
YaleL. J. 966, 977 (1967).

The appropriate adjustment between state interests and 
constitutional right^ is to permit the state to punish a 
practice only upon a showing that the practice has resulted 
in actual harm to a client or some other person, or to re­
strain a practice on)y upon a showing of manifest danger, 
and then only by ja, regulation narrowly directed at the 
threatened harm. /Thus, Illinois could constitutionally pro-



45

hibit a salaried union attorney from representing both 
plaintiff and defendant where both were members of Dis­
trict 12, and could require the union in that case to retain 
outside counsel. But Illinois may not prohibit group serv­
ices entirely just because cases of real conflict may be 
imagined. As shown above, this rule of requiring prohibi­
tions which may infringe upon constitutional rights to be 
narrowly focused is the rule traditionally applied by the 
Court in both F irst Amendment and due process cases.

Neither the contingent fee bar nor any other segment 
of the legal profession need fear from our suggested dis­
position. Possibly the widespread existence of group serv­
ices will require contingent rates to become lower and 
therefore more competitive with other forms of service, 
but this may well be made up for by an aggregate in­
crease in effective demand for lawyers. The advent of 
group medical service, medical insurance, and Medicare 
raised the income of doctors by raising demand closer to 
the level of community need, and all available evidence 
suggests that this phenomenon will apply also to law. In 
fact, “in California’s Alameda County where a pioneer 
CEO program has been operating for over a year and a 
half, the number of referrals to the County Bar Associa­
tion Referral Service quadrupled. And in New Haven 
[contrary to the fears of members of the County Bar As­
sociation], the County Bar Association reported that re­
ferrals have increased threefold since 1963.” Office of 
E conomic Opportunity, F irst A nnual R eport of the 
L egal Services P rogram to the A merican B ar A ssocia­
tion 9 (1966). F ar from damaging the profession, con­
stitutional protection for the fledgling legal services revo­
lution will aid significantly fulfillment by lawyers of their 
promise and their duty to the American public.



46

CONCLUSION

The traditional lawyer-client relationship has proven 
inadequate to meet contemporary needs for legal service. 
Diversity and experimentation in the provision of legal 
assistance must be ensured so that Americans may enjoy 
in reality the rights which are in theory theirs. Rules of 
ethics have a place in preventing abuses, but should not be 
allowed to impede unduly the development of new ways 
of providing and paying for legal service; broad and 
vague rules cannot constitutionally be applied merely be­
cause potential harm to potential clients can be hypothe­
sized. For the foregoing reasons, we submit that the 
judgment below should be reversed.

Respectfully submitted.

J ack Gbeekbebg 
J ames M. Nabbit, I I I  
Melvyn Zabb

10 Columbus Circle 
New York, New York 10019

Attorneys for NAACP Legal 
Defense and Educational Fund, 
Inc., and the National Office for 

j the Rights of the Indigent

J ay H. T opkis 
Of Counsel



47

I n t h e

Court of tijr lutfrfi t̂atro
OcTOBEK T eem, 1967

No. 33

U nited Mine  W oekbes, D isteict 12,

Petitioner,

-V.—

I llinois State Bae A ssociation, et al.

ON WEIT OF CEETIOEAEI TO THE SUPEBME COUET OF ILLINOIS

M otion for  Leave to Participate in  Oral Argument

The NAACP Legal Defense and Edncational Pnnd, Inc., 
and the National Office for the Eights of the Indigent, 
respectfully move the Court for permission to participate 
in oral argument. Movants recognize that such permission 
is granted only rarely; we submit, however, that this is 
an extraordinary situation.

Although decisions of this Court typically have wide­
spread effects, affecting rights of thousands of persons 
not parties to the case decided by the Court, this ease has 
even broader ramifications. As a committee of the Ameri­
can Bar Association has noted, “this case above all holds 
the key to how, and in what manner, attorneys are to



48

practice law in contemporary times” (brief, p. 34). If  the 
Court accepts onr suggested disposition of the merits, its 
decision will ensure that the legal services revolution will 
continue to flourish, so that for the first time, all Americans 
will be able to enjoy the rights to which they are entitled. 
The right to have rights is itself affected.

No amicus can truly speak for all the millions of persons 
in need of legal services. But our unvarying objective has 
been to extend legal services to those in need, and we feel 
that we can help inform the Court about that need and 
the ways in which it might be satisfied.

W herefore, m ovants respectfu lly  request perm ission to 
participate in oral argument.

Kespectfully submitted.

J ay H. T opkis 
Of Counsel

J ack Greenberg 
J ames N abrit, III  
Melvyn Zarr

10 Columbus Circle 
New York, New York 10019

Attorneys for NAACP Legal 
Defense and Educational Fund, 
Inc., and the National Office for 
the Bights of the Indigent



RECOpfe-

38