Young Lords Party v. New York State Supreme Court Appellate Division Motion to Dismiss or Affirm

    IN THE

fettjflrjwti* (tart of %  Imtpfc B tatu r
OCTOBER TERM, 1973 

No. 73-623

Y oung Lords Party, et at.,
Appellants,

v.
Supreme Court of the State of New  Y ork, 
A ppellate Division, First Department, et al.,

Appellees.

o n  a p p e a l  f r o m  t h e  u n it e d  s t a t e s  d is t r ic t  c o u r t
f o r  THE SOUTHERN DISTRICT OF NEW YORK

MOTION TO DISMISS OR AFFIRM

Daniel M. Cohen 
Assistant Attorney 
General

George A. Brownell 
Guy Miller Struve 

Of Counsel

Louis J. Lefkowitz 
Attorney General of the 

State of New York 
2 World Trade Center 
New York, New York 10047

Lawrence E. W alsh 
1 Chase Manhattan Plaza 
New York, New York 10005 
(212) 422-3400

Attorneys for Appellees



TABLE OF CONTENTS

PAGE

Questions Presented ..................................................  3

Statement of the C ase................................................  3
1. Section 495(5) of the New York Judiciary

L a w ................................................................  3
2. Part 608 of the Rules of the Appellate Di­

vision ..............................................................  6
Informational Provisions of Part 608 . . . .  6
Substantive Guidelines of Part 608 ............  8
Standards Applied by the Appellate Division 

Under Section 495 (5) ..............................  9
3. The Present A ction ......................................  11

Argument ..........................................................................  12

I. The First Amendment and the Equal Protec­
tion Clause Do Not Bar State Supervision of 
the Practice of Law by Charitable Corpora­
tions ................................................................  13

II. The District Court Correctly Held that Appel­
lants Should First Apply for Approval to the 
Appellate Division..........................................  23

Conclusion ........................................................................ 28



11

Table of Authorities

Cases
PAGE

Abbott Laboratories v. Gardner, 387 U.S. 136
(1967) ..................................................................... 25

Association for the Preservation of Freedom of 
Choice, Inc. v. Shapiro, 9 N.Y.2d 376, 174 N.E.2d 
487, 214 N.Y.S.2d 388 (1961) ..............................  10

Best Bldg. Co. v. Employers’ Liab. Assurance Corp.,
247 N.Y. 451, 160 N.E. 911 (1928) ....................  21

Board of Regents v. New Left Educ. Project, 404
U.S. 541 (1972) ....................................................  2

Boshes v. General Motors Corp., No. 70-244, cert.
denied, 404 U.S. 872 (1971) ..................................  22

Brotherhood of R.R. Trainmen v. Virginia ex rel. 
Virginia State Bar, 377 U.S. 1 (1 9 64 ).............. 13, 14, 15

Carter v. Stanton, 405 U.S. 669 (1972) ..................  25
Commonwealth v. Hayden, 489 S.W.2d 513 (Ky.

1972) ....................................................................... 17
Coxy . Louisiana, 379 U.S. 559 (1 9 6 5 )....................  15
Dombrowski V. Pfister, 380 U.S. 479 (1965) ..........  26
Erdmann V. Stevens, 458 F.2d 1205 (2d Cir.), cert, 

denied, 409 U.S. 889 (1972) ................................ 2, 23, 26
Gay Activists Alliance v. Lomenzo, 31 N.Y.2d 965,

293 N.E.2d 255, 341 N.Y.S.2d 108 (1973) ..........  10
Gibson Y. Berryhill, 411 U.S. 564 (1 9 73 )..................  25
Harrison v. NAACP, 360 U.S. 167 (1 9 5 9 )..............  24
HiettY. United States, 415 F.2d 664 (5th Cir. 1969), 

cert, denied, 397 U.S. 936 (1970) ..........................  17
In re Fleck, 419 F.2d 1040 (6th Cir. 1969), cert, 

denied, 397 U.S. 1074 (1970) .............................. 17



In re Jones, 431 S.W.2d 809 (Mo.), cert, denied, 385 
U.S. 866 (1966) ....................................................  17

Kiernan v. Lindsay, 334 F. Supp. 588 (S.D.N.Y.
1971) , aff’d, 405 U.S. 1000 (1972) ........................ 24

Konigsberg v. State Bar of California, 366 U.S. 36
(1961) ....................................................................  15

Lake Carriers’ Assn. v. MacMullan, 406 U.S. 498
(1972) ....................................................................  24

Law Students Civil Rights Research Council, Inc. v. 
Wadmond, 299 F. Supp. 117 (S.D.N.Y. 1969),
aff’d, 401 U.S. 154 (1971) .................................... 2, 17-18

Law Students Civil Rights Research Council, Inc. v.
Wadmond, 401 U.S. 154 (1971) ............................. 19,23

Littleton v. Berbling, 468 F.2d 389 (7th Cir. 1972), 
cert, granted sub nom. O’Shea V. Littleton, 411 
U.S. 915 (1973) ......................................................  2

Matter of The Associated Lawyers’ Co., 134 A.D.
350, 119 N.Y.S. 77 (1st Dep’t 1909) ..................  4, 9

Matter of Bannerman, 39 A,D.2d 894 (1st Dep’t
1972) ......................................................................  10

Matter of CALS, 26 A.D.2d 354, 274 N.Y.S.2d 779
(1st Dep’t 1966) ....................................................  5-6

Matter of Co-operative Law Co., 198 N.Y. 479, 92
N.E. 15 (1910) ......................................................  3,4

Matter of Prisoners Assistance Committee, Inc., 26
A.D.2d 624, 272 N.Y.S.2d 700 (1st Dep’t 1966) . . 4

Matter of Thom, 33 N.Y.2d 609, 301 N.E.2d 542,
347 N.Y.S.2d 571 (1973) ......................................  10

Matter of Thom, N.Y.L.J., Oct. 19, 1973, p. 1, col. 5
(1st Dep’t Oct. 18, 1973) ......................................  10

Moody v. Flowers, 387 U.S. 97 (1967) ....................  2
NAACP V. Button, 371 U.S. 415 (1963) . . .  .13, 14, 16, 20 
New York Times Co. v. Sullivan, 376 U.S. 254

(1964) ....................................................................  15

Ill
PAGE



IV
PAGE

People V. Lawyers Title Corp., 282 N.Y. 513, 27
N.E.2d 30 (1940) ........  21

People v. Title Guarantee & Trust Co., 227 N.Y. 366,
125 N.E. 666 (1919) ..............................................  4,21

Prentis v. Atlantic Coast Line Co., 211 U.S. 210
(1908) ..................................................................... 25

Shuttlesworth v. City of Birmingham, 394 U.S. 147
(1969) ....................................................................

Speight v. Slaton, No. 72-1557, prob. juris, noted,
42 U.S.L.W. 3174 (U.S. Oct. 9, 1973) ................

State ex rel. Farber v. Williams, 183 So. 2d 537
(Fla.), cert, denied, 385 U.S. 845 (1966) ..........

State ex rel. State Bar of Wisconsin v. Bonded Collec­
tions, Inc., 36 Wis. 2d 643,154 N.W.2d 250 (1967)

UMW V. Illinois State Bar Ass’n, 389 U.S. 217
(1967) ................................................................ 13,14,15

United Transportation Union v. State Bar of Michi­
gan, 401 U.S. 576 (1971) ...................... 13, 14, 15-16, 23

West Virginia State Bar v. Bostic, 351 F. Supp. 1118
(S.D.W. Va. 1972)..........................................   23

Younger \. Harris, 401 U.S. 37 (1971) ....................  26
Zuckerman V. Appellate Div’n, Second Dep’t, 421

F.2d 625 (2d Cir. 1970) ........................................  2

Statutes and Rules

Hatch Act, 5 U.S.C. § 7324 ......................................  8
28 U.S.C. § 1253 ..........................................................  2
28 U.S.C. § 2281 ..........................................................  2
42 U.S.C. § 1983 ..........................................................  2, 25
Economic Opportunity Act of 1964, 42 U.S.C.

§§ 2701-2924 ..........................................................  5

19

26

17

17



V

Supreme Court Rule 16(1) ......................................  1
Article 15 of the New York Business Corporation

Law, N.Y. Bus. Corp. Law §§ 1501-16 ................  20, 21
N.Y. Bus. Corp. Law § 1503 (a) ................................  21
N.Y. Judiciary Law § 495 ..........................................  20-21
N.Y. Judiciary Law § 495(1) ..................................  4
N.Y. Judiciary Law § 495(5) ................................ 3-6, 9-11
N.Y. Not-for-Profit Corporation Law § 404 (a) . . . .  4
L. 1848, c. 3 1 9 ............................................................  4
L. 1909, c. 483 ..............................................................  4
Part 608 of the Rules of the Appellate Division, First 

Department..............................................................  6-11
Rule 608.2 ....................................................................  6-7
Rule 608.3 ....................................................................  7
Rule 608.5 ....................................................................  7
Rule 608.6 ........................................................................ 8, 9
Rule 608.7 ....................................................................  8-9
Rule 608.7(a) ............................................................  8
Rule 608.7(b) ............................................................  8
Rule 608.7 (c) ..............................................................  8
Rule 608.7(d) ...........................................................  8
Rule 608.7(e)  8-9,22
Rule 6 0 8 .7 (f) ............................................................9,22-23
Rule 608.8 ....................................................................7-8,22
Rule 608.9 ...................................................................  10-11

PAGE



VI

PAGE

Code of Professional Responsibility, DR 2-101 (A) 9
Code of Professional Responsibility, DR 2-103 (D) 9

Other Authorities

ABA, Opinions of the Committee on Professional 
Ethics (1967) ........................................................  21

Annot., Right of Corporation to Hold Itself Out as 
Ready to Perform Functions in the Nature of 
Legal Services, 157 A.L.R. 282 (1945) ................  3



IN THE

&nptmz CfXxturt nf tit? In itzh States
October Term, 1973

No. 73-623
----------- — ♦----------------

Y oung Lords Party, et al,

v.
Appellants,

Supreme Court of the State of New Y ork, 
A ppellate Division, First Department, et al,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF NEW YORK

-------------------- 4.--------------------

MOTION TO DISMISS OR AFFIRM

Appellees, the Supreme Court of the State of New York, 
Appellate Division, First Department and the individual 
Justices of the Appellate Division, First Department, move 
pursuant to Rule 16(1) (c) of the Supreme Court of the 
United States to affirm the judgment of the three-judge 
District Court (Circuit Judge Feinberg and District Judges 
Tyler and Wyatt), which held that appellants’ request for 
equitable relief against the Appellate Division’s rules was 
premature because appellants have not yet applied to the 
Appellate Division for approval pursuant to Section 495 (5) 
of the New York Judiciary Law.*

* Appellees also move pursuant to Rule 16(1) (a) of the Supreme 
Court to dismiss the appeal on two grounds: (1 ) The present action



2

Appellees submit that this action was clearly correct. By 
applying to the Appellate Division for approval of their 
practice of law— the orderly procedure prescribed by Sec­
tion 495(5) of the New York Judiciary Law, which appel­
lants do not attack—appellants may well satisfy most, if not 
all, of their constitutional objections to the rules adopted 
by the Appellate Division under Section 495(5), and any 
remaining issues will be sharply focused for the District 
Court. Appellants’ objection to this orderly procedure is 
founded on the premise that the First Amendment and the 
Equal Protection Clause absolutely prohibit any state super­
vision of the practice of law by charitable corporations, 
including such historically recognized potential problem 
areas as solicitation, fee-splitting, referrals, and lay control. 
The decisions of this Court make it clear that this extreme 
position cannot be sustained.

was not one requiring a three-judge District Court under 28 U.S.C. 
§ 2281, and a direct appeal does not lie to this Court under 28 U.S.C. 
§ 1253_, because the rules which appellants seek to enjoin are not of 
statewide_ application, having been adopted by the Appellate Division 
for the First Department, which embraces Manhattan and the Bronx. 
Cf., e.g., Board of Regents v. New Left Educ. Project, 404 U.S. 
541, 542-45 (1972) ; Moody v. Flowers, 387 U.S. 97, 101-02 (1967). 
But cf. Law Students Civil Rights Research Council, Inc. v Wad- 
mond, 299 F. Supp. 117, 127-28 (S.D.N .Y. 1969), aff’d on other 
grounds, 401 U.S. 154, 158 n.9 (1971). (2 ) The present action was 
not within the jurisdiction of the District Court because state courts 
and their justices are not “ persons”  against whom an injunction suit 
may be brought under 42 U.S.C. § 1983, and a direct appeal there­
fore does not lie to this Court under 28 U.S.C. § 1253. Compare, e.g., 
Zuckerman v. Appellate Div’n, Second Dep’ t, 421 F.2d 625 (2d Cir' 
1970), with, e.g., Erdmann v. Stevens, 458 F.2d 1205, 1208 (2d Cir.), 
cert, denied, 409 U.S. 889 (1972). See also Law Students Civil Rights 
Research Council, Inc. v. Wadmond, 299 F. Supp. 117, 123-24 (S.D. 
N.Y. 1969), aff’d on other grounds, 401 U.S. 154, 158 n.9 (1971) ; 
Littleton v. Berbling, 468 F.2d 389, 406-08 (7th Cir. 1972), cert, 
granted sub nom. O’Shea v. Littleton, 411 U.S. 915 (1973).



3

Questions Presented

1. Where a state court, charged by statute with approv­
ing and supervising the practice of law by charitable cor­
porations, has promulgated rules that establish an orderly 
procedure for application and approval, may such corpora­
tions ignore this procedure and seek an injunction against 
any application of the rules on federal constitutional 
grounds?

2. Do the First Amendment and the Equal Protection 
Clause bar a State from supervising in any manner the 
practice of law by charitable corporations, including such 
potential problem areas as solicitation, fee-splitting, re­
ferrals, and lay control of the practice of law?

Statement of the Case

The purpose of this statement is to summarize briefly the 
facts in the record concerning the history, purpose, and 
application of Section 495(5) of the New York Judiciary 
Law and Part 608 of the Rules of the Appellate Division, 
First Department, substantially all of which have been 
omitted from the Statement of the Case in appellants’ Juris­
dictional Statement.

1. Section 495(5) of the New York Judiciary Law

The common law of New York, like that of other States, 
has historically barred the practice of law by corporations.* 
This general prohibition was legislatively reaffirmed in

* Matter of Co-operative Law Co., 198 N.Y. 479, 483-85, 92 N.E. 
15, 16-17 (1910) ; see, e.g., Annot., Right of Corporation to Hold It­
self Out as Ready to Perform Functions in the Nature of Legal Serv­
ices, 157 A.L.R. 282, 283-84 (1945).



4

Section 495(1) of the New York Judiciary Law, originally 
enacted in 1909 as Section 280 of the New York Penal Law, 
L. 1909, c. 483, which bars a corporation from practicing 
as an attorney and from furnishing attorneys to others.* 
The chief historical basis for this general prohibition of the 
corporate practice of law in New York is the concern that 
an attorney employed by a corporation may permit organi­
zational goals to outweigh the interests of individual clients. 
Matter of Co-operative Law Co., 198 N.Y. 479, 483-84, 92 
N.E. 15, 16 (1910). A further basis is the increased dan­
ger of improper solicitation, fee-splitting, and referral, 
which are prohibited to individual attorneys as well as to 
corporations but which are particularly difficult to regulate 
effectively in the case of corporations which are permitted 
to practice law. See, e.g., People v. Title Guarantee & Trust 
Co., 227 N.Y. 366, 372, 378, 125 N.E. 666, 668, 670 (1919).

The common law of New York historically permitted 
charitable corporations such as The Legal Aid Society in 
New York City to provide legal services. See Matter of 
The Associated Lawyers’ Co., 134 A.D. 350, 352, 119 N.Y.S. 
77, 79 (1st Dep’t 1909). As with all charitable corporations 
in New York, the formation of such corporations required 
judicial approval.** With respect to legal assistance corpo­

* Significantly, Section 495 (1 ) does not prevent a corporation 
from providing persons with funds to engage attorneys, so long as the 
corporation does not itself directly or indirectly select or control the 
attorney. Matter of Prisoners Assistance Committee, Inc., 26 A.D. 
2d 624, 272 N.Y.S.2d 700 (1st Dep’t 1966).
** The formation of a benevolent or charitable corporation in New 

York has required the approval of a Justice of the Supreme Court 
since 1848. See L. 1848, c. 319, § 1. This requirement is now con­
tained in Section 404(a) of the New York Not-for-Profit Corpora­
tion Law.



5

rations, this function of judicial approval was transferred 
to the Appellate Division in 1909 by the enactment of what 
is now Section 495(5) of the New York Judiciary Law. 
Section 495(5) excepts from the general prohibition of 
corporate practice of law

“ . . . organizations organized for benevolent or 
charitable purposes, or for the purpose of assisting 
persons without means in the pursuit of any civil 
remedy, whose existence, organization or incorpora­
tion may be approved by the appellate division of 
the supreme court of the department in which the 
principal office of such corporation or voluntary as­
sociation may be located.”

From 1909 to 1966 the Appellate Division, First Depart­
ment granted eleven applications for approval pursuant to 
Section 495(5), including those of The Legal Aid Society 
in 1909, N.A.A.C.P. Legal Defense and Educational Fund, 
Inc. in 1940, and appellant A.C.L.U. Foundation, Inc. in 
1966. During the same period the Appellate Division dis­
approved four applications on the ground that they did 
not come within the scope of Section 495 (5). The passage 
of the Economic Opportunity Act of 1964, which made fed­
eral funds available for legal assistance corporations, stimu­
lated numerous applications for approval from Community 
Action for Legal Services, Inc. (“ CALS” ) and other pub­
licly funded legal assistance corporations.

In Matter of CALS, 26 A.D.2d 354, 360-62, 274 N.Y.S.2d 
779, 787-89 (1st Dep’t 1966), the Appellate Division unani­
mously held, in an opinion by Judge Breitel, that the origi­
nal CALS applications must be disapproved because they 
lacked express safeguards against interference with the



6

attorney-client relationship and against improper referral, 
solicitation, and fee-splitting. The CALS applications were 
modified to meet the standards of the CALS decision, and 
were approved in 1967. Meanwhile the number of applica­
tions for approval under Section 495(5) continued to in­
crease, and the Appellate Division decided to promulgate 
rules embodying its general standards for approving ap­
plications under Section 495(5).

2. Part 608 of the Rules of the Appellate Division

During the first half of 1970 the Appellate Division, First 
Department drafted proposed rules and submitted them for 
comment to The Legal Aid Society, CALS, and the major 
bar associations in the First Department. After revision in 
light of the comments received, the rules were promulgated 
on May 20, 1970 as Part 608 of the Rules of the Appellate 
Division, First Department. In December 1971 the Appel­
late Division published a notice, which was also sent di­
rectly to numerous interested parties, inviting further com­
ments and suggestions on Part 608. Twenty-three individ­
uals and organizations submitted comments, which were 
given detailed consideration by the Appellate Division. On 
November 30, 1972 the Appellate Division adopted amend­
ments to Part 608, the main purpose of which was to mini­
mize the burden of compliance with Part 608 to the maxi­
mum extent compatible with the Appellate Division’s duties 
of approval and supervision under Section 495(5).

Informational Provisions of Part 608. The provisions of 
Part 608 are appended to the Jurisdictional Statement (J.S. 
3a-14a). Several of these provisions are purely informa­
tional. Rule 608.2 sets forth the information to be included



7

in initial applications. Rule 608.8 specifies the contents of 
the annual reports of approved corporations. Rule 608.5 
provides for an initial approval period of up to three years, 
after which approval may be extended indefinitely, and 
Rule 608.3 provides that applications for extension should 
contain the same information as initial applications.

The information required by Rule 608.2 for initial and 
renewal applications is designed to permit the Appellate 
Division to determine whether the applications meet the 
standards of Section 495(5) and the general criteria for 
approval of a charitable corporation. In addition to the 
name, address, and date of incorporation of the corporation 
(Rule 608.2 (a), (b ) ), the rule seeks information concern­
ing the corporation’s governing board (Rule 608.2 ( c ) ) and 
the attorneys and law students employed by the corporation 
to render legal services (Rule 608.2(f), (g )) . Such in­
formation is intended to enable the Appellate Division to 
assess the responsibility and experience of the corporation’s 
governing board and attorneys, as well as the independence 
of its practice of law from lay control. The rule also seeks 
information regarding the benevolent nature of the legal 
services to be performed (Rule 608.2 (d), (e ) ), in order to 
determine whether the corporation’s activities will serve a 
bona fide charitable purpose within the scope of Section 
495(5).

In addition to the information required in initial and 
renewal applications, Rule 608.8 specifies that annual re­
ports of approved corporations shall include financial re­
ports and copies of any report rendered to any state officer 
or public funding body (Rule 608.8 (i), (j ) ) .  It also re­
quires information on referrals (Rule 608.8(f)), actions



8

brought against the corporation (Rule 608.8 (g ) ), and pub­
licity concerning legal services disseminated by the corpora­
tion to 100 or more persons (Rule 608.8(h)), to assist in 
determining compliance with the guidelines adopted by the 
Appellate Division for the solicitation, referral, and other 
activities of the corporation.

Substantive Guidelines of Part 608. Rules 608.6 and 
608.7 define guidelines to be followed by corporations ap­
proved by the Appellate Division under Section 495(5), 
unless other guidelines are approved by the Appellate Divi­
sion in the case of a specific corporation. Rule 608.6 requires 
that the practice of law by an approved corporation be 
supervised by an autonomous and independent committee 
of attorneys admitted to practice in New York, unless the 
majority of the governing board of the corporation are 
themselves attorneys admitted to practice in New York, 
and that the autonomous committee or governing board 
be responsible to the Court for the maintenance of proper 
standards and ethics in the corporation’s practice of law.

Rule 608.7(a) contains guidelines for the use of law 
students by approved corporations, and Rule 608.7(b) 
authorizes such corporations to furnish legal services to 
organizations that meet their standards of eligibility. Rule 
608.7(c) provides that, unless otherwise ordered by the 
Appellate Division, approved corporations shall not accept 
contingent fee cases, and attorneys employed by publicly 
funded corporations shall refrain from political activities 
that would be prohibited by the Hatch Act. Rule 608.7(d) 
restricts services rendered to officers or members of the 
corporation to those that are reasonably related to the 
primary purposes of the corporation. Rule 608.7(e) au­



9

thorizes an approved corporation to give public notice of 
its legal services (1) to its members, (2) to the general 
public, if it is organized solely to provide legal services 
to persons without means, and (3) by any other means con­
sistent with the Code of Professional Responsibility.* 
Finally, Rule 608.7(f), unless other fee and referral pro­
cedures are authorized by the Appellate Division, bars the 
acceptance of fees or compensation and forbids referrals 
except to authorized bar referral services.

Standards Applied by the Appellate Division Under Sec­
tion 495(5). Many of the standards applied by the Appel­
late Division in granting approval under Section 495(5) 
are implicit in the suggested guidelines of Rules 608.6 and 
608.7. The remaining standards applied by the Appellate 
Division stem from Section 495(5) itself, which appellants 
do not attack. Section 495(5) expressly provides that a cor­
poration that seeks approval under Section 495 (5) must be 
organized “for benevolent or charitable purposes, or for the 
purpose of assisting persons without means in the pursuit 
of any civil remedy” . If the purposes of a corporation seek­
ing approval do not come within these criteria, approval 
must be denied. E.g., Matter of The Associated Lawyers’ 
Co., 134 A.D. 350, 119 N.Y.S. 77 (1st Dep’t 1909).

Moreover, by its reference to “benevolent or charitable 
purposes,” Section 495(5) incorporates the standards for 
approval which have been worked out by the New York 
courts during the course of more than a century of approv­
ing the incorporation of benevolent and charitable corpora­

* DR 2-101 (A )  and DR 2-103 (D ) of the Code of Professional 
Responsibility, which has been adopted by the New York State Bar 
Association, contain provisions concerning the advertising of legal 
services.



10

tions generally. These standards emphatically do not 
include whether the court is in sympathy with the ideology 
or goals of the proposed corporation. E.g., Gay Activists 
Alliance v. Lomenzo, 31 N.Y.2d 965, 293 N.E.2d 255, 341 
N.Y.S.2d 108 (1973); Association for the Preservation of 
Freedom of Choice, Inc. v. Shapiro, 9 N.Y.2d 376, 174 
N.E.2d 487, 214 N.Y.S.2d 388 (1961). They do, however, 
include the responsibility of the corporation’s sponsors, 
their experience and ability to attain the benevolent or 
charitable goals of the corporation, and the existence of 
some need for the corporation’s proposed activities. The 
courts have held the same factors to be relevant in granting 
approval under Section 495(5) of the Judiciary Law. E.g., 
Matter of Thom, 33 N.Y.2d 609, 610, 301 N.E.2d 542, 
347 N.Y.S.2d 571 (1973) ; Matter of Bannerman, 39 A.D. 
2d 894 (1st Dep’t 1972).*

Thus the standards for approval by the Appellate Divi­
sion have been spelled out in Section 495(5), in Part 608, 
and in decisions by New York courts approving the forma­
tion of charitable corporations generally. The standards 
for revocation of approval are even more sharply defined 
by Rule 608.9, which provides that approval may be revoked 
only after notice and opportunity for hearing, and only

“for significant violations of Part 608 of the court’s 
rules, of the Code of Professional Responsibility, or 
other applicable statutes and regulations, or because 
the corporation, organization or association no

* Appellants criticize the Thom and Bannerman decisions at length 
(J.S. 17-18) without adverting to the fact that they applied criteria 
of responsibility, experience, and need that have historically been 
applied to all forms of charitable corporations in New York. The 
Thom application was granted by the Appellate Division on October 
18, 1973. Matter of Thom, N.Y.L.J., Oct. 19, 1973, p. 1, col. 5.



11

longer meets the criteria required by Section 495 of 
the Judiciary Law. . . . ”

3. The Present Action

Except for the appellant A.C.L.U. Foundation, Inc.—  
which was approved by the Appellate Division under Sec­
tion 495 (5) in 1966, but has not filed a renewal application 
under Part 608—none of the appellants has ever sought the 
approval of the Appellate Division under Section 495(5) 
or Part 608. Instead, immediately after the promulgation 
of Part 608 in 1970, appellants commenced the present ac­
tion and sought a preliminary injunction against the ap­
plication of Part 608.

Appellants expressly stated that they were not question­
ing the validity of Part 608 as applied to publicly funded 
legal assistance corporations like CALS and The Legal Aid 
Society (March 25,1971 hearing, p. 11). Appellants argued, 
however, that it is unconstitutional to apply to them any 
process of supervision that goes beyond

“trivial matters like filing our name and our ad­
dress and our telephone number and filing the same 
kind of financial statement that we file with the tax 
authorities.” (March 25, 1971 hearing, p. 12.)

On May 19, 1971 the three-judge District Court denied 
appellants’ motion for a preliminary injunction, holding 
that appellants should at least apply to the Appellate Divi­
sion for approval:

“ That the Appellate Division invites applications 
for approval and for exceptions from plaintiff Legal 
Rights Organizations and that these would be con­
sidered sympathetically was made clear by counsel



12

for defendants at the hearing of this motion on 
March 25, 1971. It is thus appropriate for this statu­
tory Court to stay its hand to permit defendants to 
consider, and perhaps resolve, the constitutional 
issues raised in this complaint. No harm is fore­
seeable to plaintiffs since counsel for defendants 
represented at the hearing that the Appellate Divi­
sion will not seek to impose any sanctions on plain­
tiffs until thirty days after final disposition of this 
action.” 328 F. Supp. 66, 68-69 (S.D.N.Y. 1971).

Appellants did not apply to the Appellate Division for 
approval. Nor did they appeal to this Court from the denial 
of the preliminary injunction. Instead, secure in the Appel­
late Division’s assurance that the status quo would be main­
tained pending final disposition of the action, appellants 
did nothing for almost two years, until the District Court 
suggested during the course of a routine calendar review 
that the action might be dismissed for lack of prosecution. 
Appellants then moved for summary judgment. The three- 
judge District Court, adhering to its earlier holding, denied 
summary judgment, and dismissed the complaint without 
prejudice to renewal of the action after appellants had 
applied to the Appellate Division. 360 F. Supp. 581, 582 
(S.D.N.Y. 1973). This appeal is taken from the judgment 
dismissing the complaint.

ARGUMENT

Appellants strive to depict this appeal as one involving 
fundamental substantive questions of nationwide import­
ance concerning the constitutionality of state regulation of 
the practice of law by organizations (J.S. 9-11). In fact, 
this appeal involves no such questions. The only question



13

presented by this appeal is a procedural one: whether the 
District Court correctly held that appellants should first 
apply to the Appellate Division for approval and for any 
exceptions from the general guidelines of Part 608 that are 
appropriate for their activities, so that it can be determined 
whether there are in fact any concrete disagreements be­
tween appellants and the Appellate Division and, if so, 
what is their nature and scope.

This holding of the District Court was plainly a judicious 
and common-sense resolution of the procedural issue. In 
attacking it, appellants are forced into the extreme posi­
tion that the First Amendment forbids any state supervision 
of the practice of law by charitable corporations (J.S. 12- 
21). Appellees will first show that this extreme position is 
not supported by the decisions of this Court, and will then 
demonstrate that the holding of the District Court that 
appellants should first apply to the Appellate Division is in 
accord with the decisions of this Court.

I.

The First Amendment and the Equal Protection 
Clause Do Not Bar State Supervision of the Practice 
of Law by Charitable Corporations.

The decisions of this Court in NAACP V. Button, 371 
U.S. 415 (1963), Brotherhood of R.R. Trainmen v. Virginia 
ex rel. Virginia State Bar, 377 U.S. 1 (1964), UMW v. 
Illinois State Bar Ass’n, 389 U.S. 217 (1967), and United 
Transportation Union v. State Bar of Michigan, 401 U.S. 
576 (1971), establish that the practice of law by charitable 
corporations such as appellants is within the right of as­



14

sociation protected by the First Amendment, which is made 
applicable to the States by the Due Process Clause of the 
Fourteenth Amendment. However, these decisions also 
demonstrate that the First Amendment right of organiza­
tions to practice law is not an absolute right which fore­
closes any state supervision of the practice of law by chari­
table corporations.

NAACP V. Button involved a Virginia statute that had 
been construed by the Virginia Supreme Court of Appeals 
to prohibit the NAACP from recommending or furnishing 
attorneys in connection with any litigation to which it was 
not a party and in which it had no pecuniary interest. 371 
U.S. at 423-26, 434-35. The Court held that such a broad 
prohibition “could well freeze out of existence all such ac­
tivity on behalf of the civil rights of Negro citizens.” 371 
U.S. at 436. After reviewing the factual record concerning 
the NAACP’s activities in Virginia, the Court concluded 
that the record did not justify the complete prohibition of 
the NAACP’s activities. 371 U.S. at 442-44. The Brother­
hood, UMW, and UTU cases involved state court decrees 
that prohibited unions from recommending or employing 
attorneys to represent their members in accident cases. 
Following NAACP v. Button, the Court held that the facts 
before it in those cases did not justify such a broad pro­
hibition.

Thus NAACP V. Button and each of the decisions which 
followed it held that, on the facts before the Court, the First 
Amendment did not permit the State to prohibit absolutely 
the practice of law by the organizations before the Court. 
Not one of the decisions stated that the First Amendment 
right of an organization to practice law is an absolute right



15

which cannot be subjected to reasonable state supervision 
and informational requirements.* None of the decisions 
held that there is an absolute First Amendment right to 
form a charitable corporation to practice law, free of the 
requirements of judicial approval and state supervision 
which apply to all other charitable corporations. Not one 
of the decisions held a state statute or rule regulating the 
organizational practice of law invalid on its face and in its 
entirety—the relief which appellants demand in the present 
case.

The facts of the Brotherhood and TJTU cases are equally 
inconsistent with appellants’ argument that the First 
Amendment bars any state regulation of the practice of 
law by organizations. In Brotherhood, this Court specif­
ically noted that certain portions of the Virginia decree, 
which enjoined the union and its regional investigators from 
fee-splitting with the attorneys they recommended, were 
not challenged. 377 U.S. at 5 n.9. In UTU, the record 
showed that the union had been operating since 1958 under 
an Illinois court decree which enjoined the union, among 
other things, from using its investigators to obtain contracts 
for the employment of union-recommended attorneys, and 
from splitting fees with attorneys. 401 U.S. at 589-90 
(Harlan, J., dissenting). Nothing in the opinion of the 
Court suggested that the Illinois decree was invalid; indeed, 
the Court reversed a provision in the Michigan decree pro­

* This fact is especially significant because the Court’s opinions in 
the Brotherhood, UMW, and UTU  cases were written by Mr. Justice 
Black, who expressed with great force and conviction the belief that 
other First Amendment rights are absolute. See, e.g., Cox v. Louisi­
ana, 379 U.S. 559, 578 (1965) (concurring and dissenting opinion) ; 
New York Times Co. v. Sullivan, 376 U.S. 254, 293 (1964) (concur­
ring opinion); Konigsberg v. State Bar of California, 366 U.S. 36, 
60-62 (1961) (dissenting opinion).



16

hibiting fee-splitting, not on the ground that the First 
Amendment required Michigan to permit fee-splitting, but 
on the ground that the record in the Michigan case (as dis­
tinguished from the Illinois case) contained no evidence of 
fee-splitting. 401 U.S. at 582-84.

Finally, the opinions of the Court in NAACP V. Button 
and the cases following it demonstrate that the hazards of 
organizational interference with the attorney-client rela­
tionship and of improper solicitation, fee-splitting, and 
referral are genuine concerns that justify careful state 
oversight of the activities of legal assistance corporations 
(although the Court found that these hazards had not ma­
terialized in the specific cases before it ) . Thus, for example, 
the Court stated in NAACP v. Button, 371 U.S. 415, 444 
(1963) :

“Nothing that this record shows as to the nature and 
purpose of NAACP activities permits an inference 
of any injurious intervention in or control of litiga­
tion which would constitutionally authorize the ap­
plication of Chapter 33 to those activities.”

Mr. Justice White stated in a separate opinion:

“ If we had before us, which we do not, a narrowly 
drawn statute proscribing only the actual day-to- 
day management and dictation of the tactics, strat­
egy and conduct of litigation by a lay entity such 
as the NAACP, the issue would be considerably dif­
ferent, at least for me; for in my opinion neither 
the practice of law by such an organization nor its 
management of the litigation of its members or 
others is constitutionally protected. Both practices 
are well within the regulatory power of the State.” 
371 U.S. at 447.



17

Lower court decisions following the Button, Brotherhood, 
UMW, and UTU decisions have consistently held that these 
decisions do not foreclose state regulation of improper 
solicitation, fee-splitting, and referral in connection with 
the practice of law. E.g., In re Fleck, 419 F.2d 1040, 1041, 
1046 (6th Cir. 1969), cert, denied, 397 U.S. 1074 (1970) 
(improper solicitation and contingent fees) ; Hiett V. United 
States, 415 F.2d 664, 673 (5th Cir. 1969) (dictum), cert, 
denied, 397 U.S. 936 (1970) (fraudulent solicitation); 
State exrel. Farberv. Williams, 183 So. 2d 537, 538 (Fla.), 
cert, denied, 385 U.S. 845 (1966) (improper solicitation); 
Commonwealth v. Hayden, 489 S.W.2d 513, 515 (Ky. 1972) 
(improper referral by bail bondsman); In re Jones, 431 
S.W.2d 809, 818 (Mo.), cert, denied, 385 U.S. 866 (1966) 
(improper referral and fee-splitting) ; State ex rel. State 
Bar of Wisconsin v. Bonded Collections, Inc., 36 Wis. 2d 643, 
154 N.W.2d 250, 258-59 (1967) (corporate practice of 
law).

The First Amendment issue in the present case is even 
more limited: whether the First Amendment prohibits a 
State from seeking information concerning the practice of 
law by charitable corporations, and from prescribing guide­
lines for such corporations in the potential problem areas 
of lay control, solicitation, referral, and fee-splitting, 
unless facts supporting different guidelines in the case of 
a specific corporation are brought forward by the corpora­
tion. As shown above (pp. 6-9), the requirements of 
Part 608 amount to no more than this. Such requirements 
of coming forward with evidence with respect to matters 
peculiarly within an applicant’s own knowledge in the area 
of admission to the practice of law were upheld against 
First Amendment attack in Law Students Civil Rights



18

Research Council, Inc. v. Wadmond, 299 F. Supp. 117, 125 
(S.D.N.Y. 1969), aff’d, 401 U.S. 154, 157-60 (1971). 
Appellees submit that Law Students equally establishes the 
validity of Part 608.

The nature of appellants’ First Amendment attack on 
Part 608 is difficult to define. It is plainly not an attack 
on Part 608 as construed and applied, because appellants’ 
very purpose in taking the present appeal is to deny the 
Appellate Division any chance to construe Part 608 as 
applied to appellants. However, as appellants concede (J.S. 
16), appellants do not contend that Part 608 is invalid on 
its face, because they admit that there are corporations to 
which Part 608 may constitutionally be applied.* Despite 
the difficulty of finding an analytical basis for appellants’ 
First Amendment attack on Part 608, their ultimate 
aim is clearly defined by their statements in the District 
Court: appellants’ aim is to establish that the First Amend­
ment prohibits any supervision of their activities beyond 
“ trivial matters” such as their name, address, and financial 
statements (see p. 11 supra).

Appellants’ principal argument, made in Point I of their 
Jurisdictional Statement (J.S. 12-18), is that Part 608 
is invalid under the First Amendment licensing cases (J.S. 
14-16). Even assuming that the licensing cases are an­
alogous to this case, they do not hold that a First Amend­

* Appellants have consistently conceded that there are legal assist­
ance corporations to which Part 608 may constitutionally be applied. 
In the District Court, appellants did not challenge the validity of Part 
608 as applied to publicly funded legal assistance corporations like 
CALS and The Legal Aid Society (Reply Brief dated March 23, 
1971, p. 11; March 25, 1971 hearing, p. 11). Even in this Court, ap­
pellants concede the validity of Part 608 as applied to “ a group formed 
to provide legal services for profit in criminal or negligence cases” 
(J.S. 16).



19

ment right may not be made the subject of a requirement 
of application and approval, and still less that such a re­
quirement may not be applied to charitable corporations 
that practice law. Rather, they establish that such a re­
quirement must be guided by reasonable and defined stand­
ards, and must be expeditiously conducted. E.g., Shuttles- 
worthv. City of Birmingham, 394 U.S. 147, 150-53 (1969).

Part 608 meets these requirements. Appellants repeat­
edly stigmatize Part 608 as “ standardless” {e.g., J.S. 16), 
but in fact, as shown above (pp. 9-11), the standards 
applied by the Appellate Division in granting approval 
under Section 495(5) are apparent from Section 495(5) 
itself, from Part 608, and from the standards used by the 
New York cofirts in approving the formation of charitable 
corporations generally. As in the case of the standard of 
“ character and general fitness” for admission to the Bar 
sustained by this Court in Law Students Civil Rights Re­
search Council, Inc. v. Wadmond, 401 U.S. 154, 159 (1971), 
history has defined the contours of these standards.*

Point II of the Jurisdictional Statement (J.S. 18-20) 
asserts that New York has no substantial regulatory 
interest justifying the requirement of Appellate Division 
approval and supervision of the practice of law by chari­
table corporations under Section 495 (5) and Part 608. This 
assertion is mistaken.

Section 495(5) and Part 608 serve three substantial state 
interests. The first is the interest, which applies to all

* Appellants suggest that the Appellate Division was guilty of undue 
delay in passing upon the application for approval in the Bannerman 
case (J.S. 19 n.21). In fact, the lapse of time in Bannerman was due 
chiefly to lengthy delays by the applicants in responding to the Ap­
pellate Division.



20

charitable corporations, in assuring the responsibility and 
experience of the corporation’s sponsors, their adherence 
to the charitable goals of the corporation, and the existence 
of some need for the corporation’s proposed activities (see 
pp. 9-10 supra). The second is the strong interest in 
guarding against organizational or lay interference with 
the basic relationship between attorney and client in litiga­
tion sponsored by the corporation, an interest whose legiti­
macy was affirmed in NAACP v. Button, 371 U.S. 415, 444 
(1963), id. at 447 (separate opinion of White, J.). The 
third is the interest in guarding against such practices as 
unjustified or misleading solicitation, fee-splitting, or re­
ferral (see pp. 4, 5-6, 17 supra). These potential problems 
are also present in the case of individual attorneys, but 
the probability of their occurrence is heightened in the case 
of corporations that are permitted to solicit funds to provide 
legal services to others and to advertise the availability of 
their legal services.

Appellants also argue in Point II of their Jurisdictional 
Statement that Part 608 violates the Equal Protection 
Clause because Section 495 of the New York Judiciary 
Law permits the practice of law by trust companies, 
title companies, insurance companies, and professional cor­
porations organized under Article 15 of the New York 
Business Corporation Law (J.S. 18-19).

The fallacy in this argument is simply that none of these 
organizations is permitted to engage in a business of fur­
nishing legal representation to others that is in any way 
comparable to appellants’. Counsel for a trust company rep­
resents the trust company itself, not the beneficiaries of 
the trust, so that the trust company does not furnish counsel



21

for others. A title company is permitted to practice law 
only to the extent of drafting routine conveyancing in­
struments, on the ground that such instruments can be as 
adequately drafted by laymen as by attorneys.* In the 
case of liability insurance, the furnishing of counsel by the 
insurance company to the insured is ancillary to a pre­
existing contract of liability insurance; the attorney’s duty 
is solely to the insured,** and the performance of this 
duty is buttressed by the fact that the insurance company 
itself may be liable in damages for any failure to handle 
a litigation in good faith for the benefit of the insured.*** 
Finally, a professional corporation under Article 15 of the 
Business Corporation Law is simply an incorporated law 
firm, and is permitted to render only those professional 
services that it would be permitted to render without in­
corporating under Article 15. See N.Y. Bus. Corp. Law 
1 1503(a). Article 15 of the Business Corporation Law 
does not authorize a professional corporation to solicit funds 
to provide legal services for the charitable purposes de­
scribed in Section 495(5) of the Judiciary Law or to 
advertise the availability of its legal services, as appellants 
seek to do. Thus an organization whose activities subject it 
to Section 495 cannot, as appellants assume, escape Section 
495 by incorporating under Article 15.

In Point III of their Jurisdictional Statement (J.S. 
20-21), appellants attack three individual provisions of

* See People v. Lawyers Title Corp., 282 N.Y. 513, 520-21, 27 N.E. 
2d 30, 33-34 (1940) ; People v. Title Guarantee & Trust Co., 227 N Y  
366, 373, 377, 125 N.E. 666, 668, 669 (1919).

** E.g., ABA, Opinions of the Committee on Professional Ethics, 
Formal Opinion 282, at 623 (1967).

*** See, e.g., Best Bldg. Co. v. Employers’ Liab. Assurance Corp., 
247 N.Y. 451, 453, 160 N.E. 911, 912 (1928).



22

Part 608. Appellants first argue that the annual report 
requirements of Rule 608.8 violate their First Amendment 
right of privacy. But, for the reasons given above (pp. 
14-18), New York may constitutionally seek information 
concerning the activities of charitable corporations engaged 
in the practice of law. The information sought by Part 
608 (set forth at pages 7-8 above) is comparable to that 
required in the federal income tax returns and state reports 
of any charitable organization, and would also normally 
be required by a diligent board of trustees of a charitable 
organization.

Second, appellants contend that Rule 608.7(e) prevents 
them from discussing litigation with potential litigants; 
but, as explained above (pp. 8-9), Rule 608.7(e) expressly 
authorizes an approved corporation to give public notice 
of its legal services to members and to persons without 
means, and a corporation may secure Appellate Division 
approval for even wider public information programs. 
Rule 608.7 (e) thus serves to permit the Appellate Division 
to supervise the public information programs of approved 
corporations; and, as shown above (pp. 14-18), there is no 
absolute First Amendment right to solicit potential litigants 
without judicial supervision.*

Third, appellants attack Rule 608.7(f), which requires 
that any program of fee-splitting and private referral be 
approved by the Appellate Division. Such supervision is 
plainly justified by the dangers of commercialism and

* See also Boshes v. General Motors Corp., No. 70-244, cert, de­
nied, 404 U.S. 872 (1971), an antitrust class action in which the 
plaintiff unsuccessfully challenged on First Amendment grounds a rule 
of the Northern District of Illinois requiring prior judicial approval 
of all communications with prospective class members.



23

favoritism that unsupervised fee-splitting and referral 
might well generate (see pp. 15-17 supra) *

Finally, appellants suggest in a single paragraph (J.S. 
11) that Part 608 contravenes the Supremacy Clause. On 
the contrary, it is well established that the area of ad­
mission to the practice of law is a state rather than a 
federal responsibility. See, e.g., Law Students Civil Rights 
Research Council, Inc. v. Wadmond, 401 U.S. 154, 167 
(1971); Erdmann v. Stevens, 458 F.2d 1205, 1210 (2d 
Cir.), cert, denied, 409 U.S. 889 (1972); West Virginia 
State Bar v. Bostic, 351 F. Supp. 1118, 1121 (S.D.W. Va. 
1972).

II.

The District Court Correctly Held that Appellants 
Should First Apply for Approval to the Appellate 
Division.

In Point IV of their Jurisdictional Statement (J.S. 
21-24), appellants finally come to the question actually 
presented by this appeal: whether the Distinct Court cor­
rectly dismissed the complaint upon the ground that ap­
pellants should first apply to the Appellate Division for 
approval. Appellees submit that this holding was correct, 
for four basic reasons.

Abstention. First, many of appellants’ objections—includ­
ing any residual uncertainty appellants feel concerning the 
standards embodied in Section 495(5) and Part 608— can

* In UTU  v. State Bar of Michigan, 401 U.S. 576, 582-84 (1971), 
the Court avoided holding that fee-splitting is protected by the First 
Amendment, holding instead that the record contained no evidence 
that fee-splitting had occurred.



24

be authoritatively resolved through a construction of Sec­
tion 495(5) and Part 608 as a matter of New York State 
law by the Appellate Division and the New York Court 
of Appeals. Accordingly, under the doctrine of abstention, 
the federal courts should stay their hand to permit the New 
York State courts to resolve these issues of New York 
State law. C/., e.g., Lake Carriers'1 Assn. v. MacMullan, 
406 U.S. 498, 510-12 (1972); Kiernan v. Lindsay, 334 F. 
Supp. 588, 596-97 (S.D.N.Y. 1971), aff’d, 405 U.S. 1000 
(1972).

This was precisely the holding of this Court in the only 
previous case in which a federal court injunction was sought 
against a state statute or rule regulating the practice of 
law by organizations, Harrison v. NAACP, 360 U.S. 167 
(1959). In that case the Court held:

“ [N]o principle has found more consistent or clear 
expression than that the federal courts should not 
adjudicate the constitutionality of state enactments 
fairly open to interpretation until the state courts 
have been afforded a reasonable opportunity to pass 
upon them. . . .

The present case, in our view, is one which calls 
for the application of this principle, since we are 
unable to agree that the terms of these three statutes 
leave no reasonable room for a construction by the 
Virginia courts which might avoid in whole or in 
part the necessity for federal constitutional adjudi­
cation, or at least materially change the nature 
of the problem.” 360 U.S. at 176-77.

Exhaustion of State Administrative Remedies. The Dis­
trict Court held that appellants should apply to the Appellate



25

Division under the doctrine of exhaustion of state ad­
ministrative remedies which was enunciated in Prentis v. 
Atlantic Coast Line Co., 211 U.S. 210, 226-30 (1908). 328 
F. Supp. 66, 68 (S.D.N.Y. 1971). Appellants correctly 
note (J.S. 22) that the present action is brought under 
42 U.S.C. § 1983, and that this Court has not generally 
required exhaustion of state administrative remedies in 
actions brought under 42 U.S.C. § 1983. See, e.g., Carter 
v. Stanton, 405 U.S. 669, 671 (1972). However, this Court 
noted in Gibson v. Berry hill, 411 U.S. 564, 574-75 (1973), 
that the doctine of exhaustion of state administrative 
remedies may still apply in certain exceptional cases brought 
under 42 U.S.C. § 1983.

Appellees suggest that the present case is such an ex­
ceptional case because it is not ripe for review by the Dis­
trict Court, and will not be ripe until appellants have ex­
hausted their administrative remedy by applying to the 
Appellate Division. Under the standards of ripeness formu­
lated in Abbott Laboratories v. Gardner, 387 U.S. 136, 148- 
51 (1967), the present case is not ripe for review because 
the Appellate Division has not yet formulated the concrete 
and definitive rules governing appellants’ activities. Part 
608 is not a self-applying set of rules; instead, its purpose is 
to provide a framework within which the Appellate Division 
can determine what rules ought to apply to a specific cor­
poration, by setting forth the information to be supplied to 
the Appellate Division and the guidelines to be followed by 
approved corporations unless other guidelines are approved 
by the Appellate Division.

Thus appellants should be required to apply to the Appel­
late Division for approval, not merely because the Appellate



26

Division may fairly be expected to respect appellants’ 
constitutional rights, but also because there can be no con­
crete or definitive administrative determination, ripe for 
review by the District Court, until the Appellate Division 
has passed upon appellants’ applications.

Federal-State Comity. The principle of federal-state com­
ity also supports the holding of the District Court. Appel­
lants’ attempt to obliterate Part 608 without giving the 
Appellate Division any opportunity to apply it runs counter 
to this Court’s holding in Younger v. Harris, 401 U.S. 37, 
52 (1971), that

“Procedures for testing the constitutionality of a 
statute ‘on its face’ in the manner apparently con­
templated by Dombrowski, and for then enjoining 
all action to enforce the statute until the State can 
obtain court approval for a modified version, are 
fundamentally at odds with the function of the 
federal courts in our constitutional plan.”

The general question whether Younger V. Harris governs 
a case in which there is no pending state criminal pro­
secution is now before this Court in Speight v. Slaton, No. 
72-1557, prob. juris, noted, 42 U.S.L.W. 3174 (U.S. Oct. 
9, 1973). Regardless of how this question may be resolved 
as a general matter, Younger v. Harris should be followed 
where the appellants are attempting to use a federal in­
junction suit to block the supervisory authority of a state 
court over the practice of law, which has traditionally 
been recognized as an area of peculiar state concern. Cf., 
e.g., Erdmann v. Stevens, 458 F.2d 1205, 1210 (2d Cir.), 
cert, denied, 409 U.S. 889 (1972).



27

Lack of Irreparable Injury. The fourth ground sup­
porting the District Court’s action is that, although appel­
lants demanded an injunction against Part 608, they failed 
to demonstrate that they would suffer irreparable injury 
by applying to the Appellate Division. Appellants sub­
mitted to the District Court affidavits, all but one executed 
by officers of the appellants themselves, stating in con- 
clusory terms that Part 608 would have an inhibiting and 
curtailing effect upon appellants’ operations and contrib­
utors (J.S. 8-9). The District Court correctly found that 
these concl usory affidavits did not establish that a simple 
requirement of application to the Appellate Division be­
fore proceeding in the District Court would have a meas­
urable chilling effect. Instead, the District Court found in 
1971 and again in 1973 that

“ No harm is foreseeable to plaintiffs since counsel 
for defendants represented at the hearing that the 
Appellate Division will not seek to impose any sanc­
tions on plaintiffs until thirty days after final dis­
position of this action.” 328 F. Supp. 66, 69 (S.D. 
N.Y. 1971); 360 F. Supp. 581, 582 (S.D.N.Y. 1973).

The Appellate Division has no intention of violating the 
constitutional rights of any of the appellants. The Appellate 
Division sincerely respects the efforts of legal assistance 
corporations to vindicate fundamental constitutional liber­
ties through litigation, and Part 608 is in no way intended 
to choke off such efforts. The Appellate Division should be 
given an opportunity to perform its duty of review and 
approval under Section 495(5) of the New York Judiciary 
Law, through the orderly procedure of application pre­
scribed by Section 495(5).



28

CONCLUSION

For the reasons given above, the judgment of the United 
States District Court for the Southern District of New 
York entered on June 21, 1973 should be affirmed or, in 
the alternative, the appeal should be dismissed.

Dated: New York, New York 
November 7, 1973

Respectfully submitted,

Louis J. Lepkowitz 
Attorney General of the 

State of New York 
2 World Trade Center 
New York, New York 10047

Daniel M. Cohen 
Assistant Attorney 
General

Lawrence E. W alsh 
1 Chase Manhattan Plaza 
New York, New York 10005 
(212) 422-3400

George A. Brownell 
Guy Miller Struve 

Of Counsel
Attorneys for Appellees