Burgess v Hampton Motion for Leave to File Memorandum Amicus Curiae

    IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JAMES A. BURGESS,
Plaintiff,

v.
ROBERT E. HAMPTON, et al 

Defendants.

CIVIL ACTION 

No. 76-0863

MOTION FOR LEAVE TO FILE MEMORANDUM 
AMICUS CURIAE ON BEHALF OF THE NAACP 
LEGAL DEFENSE AND EDUCATIONAL FUND, INC.

Movant NAACP Legal Defense and Educational Fund, Inc., 
respectfully moves the Court for permission to file the attached 
memorandum amicus curiae, for the following reasons. The 
reasons assigned also disclose the interest of the amicus.

(1) Counsel for the plaintiff has consented to 
the filing of a memorandum amicus curiae 
by the movant. The present motion is 
necessitated because counsel for the 
defendant has refused consent.

(2) Movant NAACP Legal Defense and Educational 
Fund, Inc., is a non-profit corporation, 
incorporated under the laws of the State of 
New York in 1939. It was formed to assist 
Blacks to secure their constitutional rights



1 / E.g C . A . No.

by the prosecution of lawsuits. Its charter 
declares that its purposes include rendering 
legal aid gratuitously to Blacks suffering 
injustice by reason of race who are unable, on 
account of poverty, to employ legal counsel on 
their own behalf. The charter was approved 
by a New York Court, authorizing the organi­
zation to serve as a legal aid society. The 
NAACP Legal Defense and Educational Fund, Inc. 
(LDF), is independent of other organizations 
and is supported by contributions from the 
public. For many years its attorneys have 
represented parties and has participated as 
amicus curiae in the federal courts in cases 
involving many facets of the law.

(3) Attorneys employed by amicus are counsel
for plaintiffs in more than thirty (30) cases 
brought under Title VII of the Civil Rights 
Act of 1964 against government agencies through­
out the nation, including a number in this 

_!/district. Thus, we have a direct interest in 
the question presented by the government's motion 
seeking an award of counsel fees against an un­
successful plaintiff.

, Barrett v. United States Civil Service Commission, 
74-1694

- 2 -



(4) Attorneys for amicus have been primarily
responsible for the development of the law 
regarding counsel fee awards under the various 
Civil Rights Acts, having represented plaintiffs 
in the leading cases of Newman v. Piggie Park 
Enterprise, 390 U.S. 400 (1968); Northcross 
v. Memphis Board of Education, 412 U.S. 427 (1973), 
Bradley v. School Board of the City of Richmond 
416 U.S. 696 (1974) and Johnson v. Georgia 
Highway Express, Inc., 488 F.2d 714 (5th Cir.
1974). Therefore, we believe that Our views 
on the important question before the Court 
will be helpful in its resolution.

WHEREFORE, for the foregoing reasons 
we move that the NAACP Legal Defense and Educational Fund,
Inc. be given leave to file the attached memorandum amicus curiae.

Respectfully submitted,

DAVID CASHDAN1712 "N" Street, N.W.
Washington, D. C. 20036 
Tel. No. 202-833-9070

JACK GREENBERG
CHARLES STEPHEN RALSTON
MELVYN R. LEVENTHAL
BILL LANN LEE

10 Columbus Circle
New York, New York 10019
Tel. No. 212-586-8397

Counsel for Amicus Curiae

-3-



IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JAMES A. BURGESS,
Plaintiff, 

v.
ROBERT E. HAMPTON, et al., 

Defendants.

CIVIL ACTION 
NO. 76-0863

MEMORANDUM OF THE NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC., AS AMICUS 
CURIAE IN OPPOSITION TO DEFENDANTS' 
MOTION FOR ATTORNEY'S FEES.

I.

Introduction

We will urge in some detail below two reasons v/hy the 
government's motion for counsel fees should be denied. First, 
the statute clearly prohibits such an award; and, second, even 
if the government might be entitled to an award under some cir­
cumstances as a defendant in a Title VII action, it cannot ob­
tain an award in this case under well-established principles. 
Preliminarily, however, we wish to urge the Court that the grant­
ing of the government's motion would undermine totally the basic 
policy behind allowing counsel fee awards in Title VII actions.

The purpose of the fee provision is to encourage the bring­
ing of Title VII cases because plaintiffs act in the capacity of 
"private attorneys general," enforcing a congressional policy of



great importance. This is particularly the case in a Title VII 
action against federal government agencies because a private 
party is the only "attorney general" in such an instance, in con­
trast with the situation where a defendant is a private employer 
or a state or local government agency where the federal govern­
ment through either the Equal Employment Opportunity Commission 
or the Attorney General can bring suit. Thus, to assess attorneys' 
fees against a plaintiff in an action brought where the govern­
ment is a defendant could only have the effect of intimidating 
potential plaintiffs and discouraging them from exercising their 
rights under Title VII. Since there is no other possible 
plaintiff to enforce Title VII judicially against federal agencies 
such a result would seriously interfere with the carrying out of 
the Congressional policy of uprooting discrimination in all em­
ployment .

We urge, therefore, that not only should the government's 
position be rejected in this case, but that the Court should 
make it unequivocally clear that under no circumstances can such 
attorneys' fees be awarded, so that even the threat of such an 
award will be dispelled once and for all.

II.

TITLE VII SPECIFICALLY PROHIBITS 
AWARDS OF COUNSEL FEES TO THE 
___________GOVERNMENT__________

The language of 42 U.S.C. § 2000e-5(k) makes it clear that 
a governmental agency head cannot be awarded counsel fees.
The section provides:

_ 1 /

1/ Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968).

-2-



"In any action or proceeding under this sub­
chapter the court, in its discretion, may allow the prevailing party, other than the Commission 
or the United States, a reasonable attorney's 
fee as part of the costs, and the Commission and 
the United States shall be liable for costs the 
same as a private person."

Amicus finds it difficult to understand the government's argu-
------------ 2J
ment why it nevertheless is entitled to counsel fees. It seems
to be based on a wholly unwarranted premise that the United
States is not going to receive, in fact, any counsel fee award
since the nominal defendant in the action is the Secretary of the
Treasury and not the United States. This is not the first time
such a construction of the statute has been urged. Its reverse
was used in an attempt to avoid payment of counsel fees where the
government had lost a Title VII action as the defendant. Thus,
it was argued that since sub-section (k) makes the United States
liable for costs, and since the head of an agency was the named
defendant and not the United States, no counsel fees could be
awarded against that defendant. This argument was rejected by 
the Courts and was abandoned by the Department of Justice in the 
face of great criticism. See, letter from Irving Jaffe, Acting

_3/Assistant Attorney General to Senator John Tunney, May 6, 1975. 
The argument in its present guise has no more basis than it did 
before, as may be shown by a simple question: To whom will the
moneys from an award of counsel fees go? It will certainly not 
be payable to the United States Attorneys personally, and it

2/ The government here relies primarily on footnote 15 of 
Grubbs v. Butz, 12 E.P.D. 1[ 11,090 (D.C.C. 1975) . With all
respect to the Court of Appeals, the footnote is pure dicta, in 
which Judge MacKinnon declined to concur. In any event, the 
footnote does not state that the government can receive counsel 
fees, but only says that it "is at least uncertain" that it 
can not.
3/ The letter was printed in full in the New Developments 

section of CCH Employment Practice Guide at 1f 5327, but no longer 
appears there. We have appended to this memorandum an excerpt 
from SNA's Daily Labor Report Current Developments Section (May 
13, 1975), that quotes the letter in its entirety.

-3-



will certainly not be payable to Mr. Simon; it will in fact be 
payable to the Treasury of the United S tates of America as is 
the case whenever costs are awarded in action involving the head 
of a government agency. Indeed, the defendants acknowledge 
as much in their memorandum when they calculate the amount of 
counsel fees by determining "their cost to the government." In 
short, who the named defendant is is irrelevant; just as any 
award of counsel fees against an agency head is paid by the 
United States in fact, so any award in his favor will be paid to 
the United States in fact, and therefore will be an award of 
attorneys' fees in its favor.

The legislative history of the 1972 amendments to Title 
VII is of no help to the government. The extension of 2000e-5(k) 
to suits against governmental agencies was not useless, since 
its effect was to allow counsel fees against the government. The 
refusal to limit counsel fees to "prevailing plaintiffs" did no 
more than to permit the awards to private or state or local 
defendants under the limited circumstances discussed below.
Since Congress had already specificially provided in 5 (k) that 
the United States could not receive counsel fees, it would have 
been redundant to say it again.

Finally, the government does not dispute that it can not 
receive counsel fees when it is the successful plaintiff in a 
Title VII action. This is so even when the defendant would be 
the United States Steel Corporation or the State of California, 
to give examples of institutions with ample legal resources.
If a defendant who has violated Title VII can not be made to

1/bear the costs of the litigation, how could Congress have pos­
sibly intended that a federal employee seeking redress against 
his government be so burdened.

4/ In an action such as United States v. United States Steel,
■520 F. 2d 1043 (5th Cir. 1975) , the costs are incomparably greater 
than the $1,010.10 sought to be squeezed out of the plaintiff 
here.

-4-



Ill.

COUNSEL FEES MAY NOT BE AWARDED 
IN THIS CASE __________

Even under the wholly unwarranted assumption that counsel 
fees might be awarded against the government under some cir­
cumstances, they cannot be in this case. The government argues 
at some length that the standard for awarding counsel fees 
to a defendant in a Title VII action is essentially the same 
as that for the awarding of fees to a plaintiff. This is simply 
not the case. It is established beyond any question that a 
prevailing defendant may receive fees only if the action is 
vexatious or frivolous, if the plaintiff has instituted it to 
harass or embarass, or if the plaintiff is motivated by malice 
or vindictiveness. In other words, fees are permissible 
if the action is brought in bad faith. United States Steel 
Corp. v. United States, 519 F.2d 359, 364 (3d Cir. 1975);
Carrion v. Yeshiva University, 535 F.2d 722 (2d Cir. 1976);
Wright v. Stone Container Corp. , 524 F.2d 1058 (8 th Cir. 1975).

The position of the government here is directly con­
trary to that recently taken before the House of Representatives 
in testimony regarding the recently enacted Civil Rights 
Attorneys' Fees Awards Act of 1976 (P.L. No. 94-559). Rex E. Lee, 
Assistant Attorney Gernal of the United States in charge of 
the Civil Division told a House Subcommittee that it was the 
position of the government that counsel fees "be restricted 
to the prevailing plaintiff, in order to prevent a possible

5



In responsechilling effect on these [civil rights] actions."
to a subcommittee inquiry, Mr. Lee further stated that it was
the Department's position that when the government was the
plaintiff counsel fees should be awarded a prevailing defendant
only where it is shown that the government brought the action

§/in "bad faith, harassment or intimidation."
Although it is not directly applicable, the legislative 

history of the Civil Rights Attorneys' Fees Awards Act of 1976 
is instructive in revealing Congressional intent with regard 
to those circumstances when defendants may receive attorneys' 
fees. See, Hickman v. Fincher, 483 F.2d 855, 857 (4th Cir. 1973) 
The new attorneys' fee bill was passed to fill at least part of 
the gap created by the Supreme Court's decision in Alyeska 
Pipeline Service Co. v. Wilderness Society. 421 U.S. 240 (1975). 
The Alyeska case held that in the absence of statutory authoriza­
tion, counsel fees could be awarded in only very limited 
circumstances. In the course of its opinion, the Supreme Court 
disapproved of lower court decisions which held that the same 
standards for awarding counsel fees that prevailed in actions 
brought under ..the Civil Rights Act of 1964, including Title VII, 
applied in actions brought under the Civil Rights Act of 1866,
42 U.S.C. §§ 1981 and 1982. 421 U.S. at 270, n. 46.

5/

5/ Transcript of testimony before the House Sub-Committee on 
Courts, Civil Liberties and the Administration of Justice, 
Committee on the Judiciary, December 3, 1975 on H.R. 8220 and 
H.R. 9552, transcript p. 127.
6/ This position was set out in a letter dated January 23, 1976 
by Rex E. Lee, Assistant Attorney General, Civil Division, United 
States Department of Justice, in response to an inquiry made in a 
letter of December 10, 1975 from the Honorable Robert W. Kasten- 
meier, Subcommittee on Courts, Civil Liberties, and the 
Administration of Justice, Committee on the Judiciary, House of 
Representatives. See, 122 Cong. Rec. H. 12162 (daily edition, 
October 1, 1976). Mr. Lee also testified before the subcommittee 
that: . . . frivolous positions are also asserted 

by the government's adversaries in litigation.
We are not asking that the government be 
awarded attorneys' fees in such cases . . . .  Testimony cited in n. 4, supra,_a^ p. 124.



Congress considered that Alyeska had created an anomalous 
situation and passed Public Law 94-559 in order to bring about 
uniformity in the entitlement to counsel fees for all civil rights 
litigation. In both the House and Senate Reports and on the floor 
of both Houses, considerable attention was given to the standards 
under which fees might be awarded to both plaintiffs and de­
fendants. Throughout, citations were made to cases arising under 
Titles II and VII of the Civil Rights Act of 1964 and Congress' 
intention was clearly to cofify and incorporate that body of law. 
The House Report, for example, states:

Under H.R. 15460, either a prevail­
ing plaintiff or a prevailing de­
fendant is eligible to receive an award of 
fees. Congress has not always been that 
generous. In about two-thirds of the 
existing statutes, such as the Clayton 
Act and the Packers and Stockyards Act, 
only prevailing plaintiffs may recover 
their counsel fees. This bill follows 
the more modest approach of other civil 
rights acts.

It should be noted that when the 
Justice Department testified in support 
of H.R. 9552, the precedessor to 
H.R. 15460, it suggested an amendment 
to allow recovery only to prevailing 
plaintiffs. Assistant Attorney General 
Lee thought the phrase "prevailing 
party" might have a "chilling effect" 
on civil rights plaintiffs, discourag­
ing them from initiating law suits.The Committee was very concerned with 
the potential impact such a phrase 
might have on persons seeking to 
vindicate these important rights 
under Federal law. In light of exist­
ing case law under similar provisions, 
however, the Committee concluded 
that the application of current 
standards to this bill will signifi­
cantly reduce the potentially adverse 
affect on the victims of unlawful

- 7 -



conduct who seek to assert their 
federal claims. H. Report No.
94-1558 on H.R. 15460, at p.6.

Following a discussion of the liberal standard for awarding
plaintiffs their counsel fees the Report continues:

Consistent with this rationale, the courts 
have developed a different standard for 
awarding fees to prevailing defendants be­
cause they do "not appear before the court 
cloaked in a mantle of public interest." 
United States Steel Corp. v. United States,
519 F.2d 359, 364 (3rd Cir. 1975). As 
noted earlier such litigants may, in proper circumstances, recover their 
counsel fees under H.R. 15460. To 
avoid the potential "chilling effect" 
noted by the Justice Department and 
to advance the public interest articu­
lated by the Supreme Court, however, 
the courts have developed another test 
for awarding fees to prevailing de­
fendants. Under the case law, such an 
award may be made only if the action 
is vexatious and frivolous, or if the 
plaintiff has instituted it solely 
"to harass or embarrass" the defendant.
United States Steel Corp. v. United 
States, supra at 364. If the plaintiff 
is "motivated by malice and vindictive­
ness," then the court may award counsel 
fees to the prevailing defendant. Car­
rion v. Yeshiva University, 535 F.2d 
722 (2d Cir. 1976). Thus if the action 
is not brought in bad faith, such fees 
should not be allowed. See, Wright v.
Stone Container Corp. 524 F.2d 1058 
(8th Cir.1975); see also Richardson v.
Hotel Corp. of America, 332 F. Supp.
519 (E.D.La. 1971), aff'd without 
published opinion, 468 F.24 951 (5th 
Cir. 1972). This standard will not 
deter plaintiffs from seeking relief 
under these statutes, and yet will 
prevent their being used for clearly 
unwarranted harassment purposes. Id. 
at 6-7.

Interestingly, the Committee addressed specifically the 
question of the standard when governmental officials are 
defendants. It stated:

8



With respect to the awarding of 
fees to prevailing defendants, it 
should further be noted that govern­
mental officials are frequently the 
defendants in cases brought under 
the statutes covered by H.R. 15460.
See, e.q., Brown v. Board of 
Education, supra; Gautreaux v.
Hills, supra; 0 1 Connor v. Donaldson, 
supra. Such governmental entities 
and officials have substantial 
resources available to them through 
funds in the common treasury, includ­
ing the taxes paid by the plaintiffs 
themselves. Applying the same standard 
of recovery to such defendants would 
further widen the gap between citizens 
and government officials and would 
exacerbate the inequality of litigating 
strength. The greater resources avail­
able to governments provide an ample 
base from which fees can be awarded 
to the prevailing plaintiff in suits 
against governmental officials or 
entitles.

The facts of this case do not establish that the action 
was brought for frivolous reasons or in an attempt to harass or 
intimidate the federal government. indeed, the notion, that a 
lone government employee could intimidate the federal govern­
ment, particularly the Internal Revenue Service, is somewhat 
absurd. This Court's opinion on the merits, although holding 
that plaintiff's claim is not meritorious, indicates that there
was sufficient basis for it to require its full consideration 
and that the action therefore was not frivolous. Thus the 
facts here fall far short of those in Carrion v. Yeshiva 
University, supra, where the district court found the action to 
be malicious, and that the plaintiff had perjured herself in an 
attempt to support a wholly baseless claim.

9



IV.

PLAINTIFF IS ENTITLED TO AN AWARD 
OF COUNSEL FEES FOR SUCESSFULLY 
DEFENDING AGAINST THE GOVERNMENT’S 

MOTION

It is well established that counsel fees are to be awarded 
to a private plaintiff in proceedings dealing with counsel fees 
itself. See, e.g■ , Miller v. Amusement Enterprises, Inc., 426 
F.2d 534 , 539 (5th Cir. 1970) ; Davis v. Board of School Commis­
sioners of Mobile County, 526 F.2d 865, 868 (5th Cir. 1976). 
These cases, of course, involved instances where the plaintiff 
had prevailed on the merits and was entitled to counsel fees 
on that basis. Nevertheless, the reasons are fully applicable 
to the present case. Indeed, under the standard set out in 
Newman v. Piggie Bark Enterprises, supra, counsel fees are 
mandated to prevent Title VII litigation from being discouraged.

CONCLUSION

For the foregoing reasons, the Motion for Attorneys' 
Fees should be denied.

Respectfully submitted,

DAVID CASHDAN
1712 "N" Street, N.S. 
Washington, D.C. 20036 
Tel. No. 202-833-9070

JACK GREENBERG 
CHARLES STEPHEN RALSTON 
MELVYN R. LEVENTHAL 
BILL LANN LEE

10 Columbus Circle
New York, New York 10019
Tel. No. 212-586-8397

Counsel for Amicus Curiae

- 10 -



CERTIFICATE OF SERVICE

I hereby certify that I have served copies of the 
attached MOTION FOR LEAVE TO FILE MEMORANDUM AMICUS CURIAE 
and MEMORANDUM AMICUS CURIAE on counsel for the parties by 
depositing the same in the United States Mail, United State 
postage prepaid, addressed as follows:

LAWRENCE S. LAPIDUS, esq.
1801 "K" Street, N.W.
Washington, D.C. 20006

EARL J. SILBERT, ESQ.
ROBERT N. FORD, ESQ.
JORDAN A. LUKE, ESQ.

Office of the United States Attorney 
United States Courthouse 
Washington, D.C.

DATED:

11



BNA's Daily  Reporter System

DAILY LABOR REPORT
CU RREN T

DEVELOPM ENTS
SECTION

(No. 93) A - 1

1 atice d e p a r t m e n t  r e t r a c t s  its  p o l ic y  of
OPPOSING ATTORNEYS' FEES IN TITLE VII CASES

The Justice Department is dropping its policy of opposing attorneys' fee awards to 
su ccessfu l plaintiffs in cases brought under Title VII of the Civil Rights Act of 1964 against
federal agencies.

The switch in position is disclosed in a letter to Senator John V. Tunney (D-Cal)
•v.im Acting Assistant Attorney General Irving Jaffe, in which he states:

"I have concluded that the position [of opposing attorneys’ fees) should be abandoned.
The U S Attorneys will therefore be instructed not to assert that position in any case 
properly brought under the 1972 amendments and to withdraw the position from any such
cases now pending. ”

Tunney, chairman of the Subcommittee on Constitutional Rights of the Judiciary Com­
mittee had written to the Justice Department on March 17, maintaining that opposing attorney 
/‘ee aWard3 in Title VII cases, "seems to fly in the face of congressional intent, and may well
frustrate the effectiveness of Title .VII. "

Tunney’ s Subcommittee on Representation of Citizen Interests, now merged with thê  
C onstitutional Rights Subcommittee, held two days of hearings on court awards of attorneys 
fees in October 1973. From these hearings, Tunney said he learned that awards of reason 
,bie attorneys’ fees in Title VII suits are essential to assure that government employees will 
re able to obtain legal representation in discrimination cases. He ad e .

"In the three years since the 1972 amendments took effect, hundreds of discrimination 
cases have been filed against federal agencies. Many are still pending, and this change 
of policy potentially affects all of them. "

The government had taken the position opposing the award of attorneys' fees on the 
grounds that such an award was not specifically provided for by the 1972 amendments to the 
Act. Jaffe's May 6 letter explaining the policy change follows: ( IEa  i )

This is in response to your letter of April 4, 1975 and in further response to your 
Setter of March 17, 1975. I regret and apologize for my delay in replying.

You correctly state that the Government has taken a position in opposing the award of 
attorneys' fees on the theory that such an award was not specifically provided for by the 9 
amendments to Title VII of the Civil Rights Act of 1964. That position was asserted in • 
Hammond v. Balzano to which you referred in your March 17th letter and in Palmer v. Rogers^ 
to which you referred in your April 4th letter, and in other cases as well.

In resDonse to your inquiry, I instituted a staff review of this position and having care­
fully considered and evaluated the results of that review, I have concluded that the position 
should be abandoned. The United States Attorneys will therefore be instructed not to assert 
‘hat oosition in any case properly brought under the 1972 amendments and to withdraw the 
position from any such cases now pending. We shall, of course, continue to address oursel 
to appropriate issues relating to the reasonableness of amounts so requested and to the court s 
discretion in making an award.

Published by THE BUREAU OF N ATION AL A FF A IR S, INC., WASHINGTON, D .C . 20037
R i g h t  o f  r e p r o d u c t i o n  and  r e d i s t r i b u t i o n  r e s e r v e d



A - 2 (No. 93) CURRENT DEVELOPMENTS (DLR) 5-13-75

The abandonment of our position with respect to attorneys’ fees does not mean that 
I consider the former position to have been frivolously asserted. It does have an arguable 
basis. Under existing law as set forth in 28 U. S.C. §2412, attorneys' fees may not be 
awarded against the United States or any agency or official of the United States unless 
specifically provided by statute. The statute which the law requires must be specific since the 
sovereign's consent to have attorneys' fees awarded against it cannot be implied but must be 
unequivocally expressed. See United States v. King, 395 U. S. 1, 4; Affiliated Ute Citizens 
v. United States, 406 U. S. 128, 142. A waiver of sovereign immunity cannot be implied by 
construction of an ambiguous statute. Petterway v. Veterans Administration Hospital, 495 
F. 2d 1223, 1225, n. 3 (5th C ir ., 1974). . V

The statute enacted by the 1972 amendments upon which reliance rests for the award 
of attorneys' fees, 42 U.S.C. §2000e-16 (d), is arguably ambiguous. It provides that the .. 
"provisions of Section 2000e-5 (f) through (k) of this title, as applicable, shall govern civil 
actions brought hereunder." Section 2000e-5 (k) authorizes award of attorneys' fees to the 
prevailing party other than the EEOC or the United States in situations where the statute 
contemplates that EEOC or the United States will be plaintiffs. On the other hand, §2000e-16 
(c) mandates a civil action against the head of the department, agency or unit, not the United 
States, and the department or agency head will be the defendant. The application of §2000e-5 
(k) to the 1972 amendments requires inferences and implications to be drawn to confer upon 
it the specificity that the law requires. •

At the same time, however, I recognize that unless such clearly intended inferences- 
be drawn, the inclusion of subsection 5 (k) within the ambit of §2000e-16 (d), might render : 
such inclusion without purpose or effect. These considerations have weighed heavily in my 
decision.

(signed) IRVING JAFFE
Acting Assistant Attorney 

General

-  0  -

PROGRESS IN PREPAID LEGAL 
SERVICES: "SLOW, BUT SURE"

Even with the ethical problems presented by prepaid legal services apparently now 
well in hand, the development of prepaid legal systems on a scale akin to those in the health 
care industry is still in the distant future. The primary obstacle, as identified by participants 
in the American Bar Association's Fifth National Conference on Prepaid Legal Services in 
New Orleans last week, is the lack of consumer awareness. Prepaid legal services also must 
surmount problems arising in the following areas - -  state insurance regulation, quality and 
cost control, the effect of ERISA, the antitrust laws, and tax consequences.

The conference identified three primary types of prepaid plans - -  those sponsored 
by bar associations; those operated through insurance companies; and those funded by various 
groups such as unions, co-ops and credit unions. The first two suffer the most from lack of 
consumer awareness, since these'programs depend upon some type of marketing. Group 7 
funded systems, on the other hand, are "top down" types of operations--participation in them 
is guaranteed by the sponsoring group. The first two types were generally described as 
floundering, as being something for the future, perhaps in "five years."

Henry A. Politz, of Shreveport, L a ., initiated the roll call by moderating the panel on 
bar association plans. The first such plan, operated by the Ohio Legal Services Fund (OLS) in 
Columbus, was described through written remarks submitted by Jay B. Ellis.

Published by THE BUREAU OF N AT ION AL A F F A IR S, INC., WASHINGTON, D .C . 20037
R ig h t  o f  r e p r o d u c t i o n  a n d  r e d i s t r i b u t i o n  r e s e r v e d