Chesterfield Smith interview by the American Bar Foundation (transcript of an interivew made in the 1970s)


Material Information

Chesterfield Smith interview by the American Bar Foundation (transcript of an interivew made in the 1970s)
Series Title:
Articles, News Clippings, Interviews and Biographical Material, 1948-2008
Physical Description:
Smith, Chesterfield H., 1917-2003
Publication Date:
Physical Location:
Box: 146
Folder: Interviews with Chesterfield - American Bar Foundation


Spatial Coverage:
North America -- United States of America

Record Information

Source Institution:
University of Florida
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
sobekcm - AA00005955_00001
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Full Text


BzGliN TAPE. 2-B

vi; bout your career in the ABA, I noticed you were first in

the Red Book in 1964, then you became president in '73, which

is a very short time.

s: Yes, the first ABA meeting that I went to was the mid-year

meeting in Chicago, 1 would guess in '64 when I was president-

elect of the Florida Bar. I had been a member of the American

nar association during my entire practice but I'd never partici-

pated in any way with the ABA. I had been active in local and

state bars. My son went with me, I remember, if that's the

correct date, that's the first time we had seen snow. He was

about 12 and my wife didn't. wy primary participation at the

mid-winter meeting was to attend and listen and perhaps make

comments, as we did in those days, at the meeting of the National

Conference of Bar Presidents. I don't remember the subjects that

were discussed very well.

.ie had a practice in Florida of electing past presidents of

the Florida Bar to serve in the House of Delegates as Bar Delegates,

and I imagine that my first listing in the Red Book was as president-

elect of the Florida Bar, if they listed president-elects. But one

of the past presidents at that time indicated that he wanted to

stay in the House, the name is 0. B. icEwan. There were implica-

Chesterfield Smith 2

tions at least that he might run for some high ABA office. He'd

been in there for quite a long time, six or eight years, and he

didn't want to go out and so he asked me if I would stay out of

the House of Delegates so that he could go on and I said: 'No'.

And he said: 'Siell, the only thing you'd get out of the House of

Delegates--everything is cut and dried'--I remember him saying

'--is they pay your expenses to the mid-winter meeting and you

can do that on committees.' And he said: 'I'm on a committee and

I'll resign and get the president to appoint you on a committee

and that'il give me two more years to see if I can do what I'm

trying to do in the office.' 'hell,' I said, 'Fine.'

-o I permitted him to stay in the House of Delegates two

more years and some president then, I guess perhaps avally Craig,

appointed me to the Lawyers', I guess you'd call it Self-Employed

Retirement Benefits Legislation Committee. That was the first ABA

committee I was on and I hadn't been very knowledgeable or inter-

ested in that subject up to that time, but I did work at it.

I then continued to work in the American Bar Association and

went to my first annual meeting, I believe it was, and this is

recollection, in New York in 1964. The World's Fair was there

and my children and me and my wife drove up there, but she left

and flew to Europe and so my children and 1 stayed there. I didn't

stay around the convention almost any at all, but I was president

of The Florida Bar by then and presided at what we at that time

Chesterfield Smith 3

used to have, an annual breakfast of all of the Florida lawyers

who went to the convention. I then came back and served out my

term as president of the Florida Bar; I went again to the mid-

winter meeting, wherever it was, perhaps in Chicago again. And

in '65 I was past president of The Florida Bar but the convention

was in iiiami that year and Lewis Powell was the president. iHe

had been down to my convention, we had become friendly, and I

was out of The Florida Bar and interested a little more in the

aib, and I went to that convention and attended and participated

in the meetings.

I was on the program for the National Conference of Bar Presi-

dents, which is a non-ABA organization, but affiliated or related

to it, and I was elected to the Board of Directors of the American

Judicature society because of the judicial activities and reform

activities 1 had been engaged in in the state about five years

prior to that. 1 spoke on judicial reform at the National Confer-

ence of Bar Presidents, what a judicial reform program can do to

improve the image of a state bar association, or something about

like that. That was my first role of any kind that I remember at

an ABA meeting, but I then got involved and I went to the mid-winter

meeting that year and the iviontreal meeting.

Somewhere right after the Lewis Powell ABA meeting, I was put

on a very wonderful committee with people that I did not know but

whom I grew to be very fond of and many of whom are still dear

Chesterfield Smith 4

friends of mine, called the Availability of Legal Services.

Bill rucualpin of St. Louis was chairman and members of it were

Theodore Voorhees of Philadelphia, Paul Carrington of Dallas,

Bill Avery of Chicago, Richard i'ahstoll of Portland, Bob Kutak

of Omaha and me. The ABA representatives that we had were, first

David Hayes, and then David Ellwanger and throughout our entire

project we had Barlow Christensen of the Foundation staff. ie

started meeting somewhere around six or eight times a year. I

found the conversations stimulating and exhilarating and they

turned my thoughts around about the ABA.

I nad started off with a preconceived notion that I did not

like the ABA; that it was too big; that many of the people were

self-serving and seeking honors; seeking to build law business at

nome by making contacts with other people who would send them things,

almost a discreet way of solicitation by becoming friendly with

lawyers; and that they were not really interested in public service

or improving the legal profession; that it was just too big and too

remote for them to get down with it and I thought because of my own

experience that that was completely in contradistinction to The

Florida Bar where I had worked and where I attributed almost pure

motives to most of the people that were in the power structure or

establishment that were working. The iicCalpin committee changed my

mind and I found that I had been wrong and I know think that they

are similar in degree, that there are some that have bad motives and

attitudes in both but that one is no worse than the other and that

Chesterfield smith 5

the American Bar Association is filled with people who are motivated

to improve the profession and they feel a sense of professional and

public responsibility, simply by reason of being a lawyer.

That same year I was elected to the executive council of the

national Conference of Bar Presidents and the whole year, I remember

now, after 1965-66, was an extremely interesting bar year because of

the tremendous exhilarating stimulation of the frequent meetings of

the incCalpin which we rambled and covered the waterfront

on availability of legal services. They remain a highlight of my

ada involvement. In fact, I keep that on my desk, that pen set that

was given to me.

I remember then in livontreal, partially growing out of my

experience on the vcCalpin committee, participating in a debate in

which I was given notice in advance that I would be called on, and

I therefore should prepare an extensive paper and notes. It was

not a complete text piece, though I later made it into one by

editing the transcript on legal specialization which was again

rearing its head for tne third time in the Association's history.

The position I took as I now recollect it was that specialization

was desirable and in truth and fact it was here and that certifi-

cation of specialists would be good, but that there were practical

and political problems within the Association that would prevent

its immediate adoption. 6o 1 suggested as an interim step some

type of designation plan that people could hold themselves out as

Chesterfield Smith 6

limiting or restricting their practice to a specialty area without

certification. That would not in any way be detrimental to the

existing structure and it might evolve into a full blown system

of legal specialization. At least we could find out whether it

did any good or whether those fears that everybody expressed about

it added up.

I got the transcript from the National Conference of Bar

Presidents and edited it and it was published in two or three

places like the Florida Bar Journal and I think Law Office Practice

and Lconomics, a little monthly pamphlet. Because of that the next

year, I suppose 1967--I really am not sure about the dates, but I

would d guess it vas while Earl riorris was president--the House of

Delegates,as tney were considering these various reports from the

.cCalpin committee, created a committee on legal specialization

and I was appointed chairman of it, which,of course, was the first

big assignment that I had.

1 nad been a member of the ucCalpin committee, which was

perhaps in the ultimate a bigger assignment, but most people didn't

know it at the time and neither did I when I started off. I served

on that committee only two years. I continued to serve on the

i;cCalpin committee one of those two years. By then I was heavily

involved with the National Conference of Bar Presidents and was

a\\are that I was going to be president of it, if I was not already

in the elected chain. I had been active in it in Honolulu, made a

speech out there and comments.

Chesterfield Smith 7

The legal specialization committee started off, I didn't

know any of the members of that committee at the time. Leonard

Janofsky from ios Angeles was a member, he succeeded me on the

committee; Ben Dutton from Indianapolis, who served with me later

on the Board of iovernors,and who was an unsuccessful candidate

for president last year, was on that committee; Charlie Joiner,

now a federal judge in Detroit, but then a law professor at

Diichigan and then dean at uiayne State and who had been long active

in the area of legal specialization, and had been a prolific author

on the subject, on the committee; Charles Post, a tax lawyer

from Bos-con; Lou Davidson, negligence plaintiffs products lia-

cility la,.yer from Chicago; Bill w;arscnall, a young lawyer from

jan An.gelo, Texas, who was involved in general office practice,

commercial practice, real estate, probate, and who succeeded

Janofsky as chairman of the committee ultimately was on the com-


nve met extensively and argued a great deal and we had two

schools of thought there. I don't know what the motives completely

were, but I'll go into what I think some of them are later. le

had a group that felt that there should really be no specialization

and that even de facto specialization should be carefully looked at

and perhaps curtailed and restricted and that it would be generally

best if people were aware of the whole breadth of the law and prac-

ticed and participated in it to that extent. I'll say that group

generally was made up of Dutton, and Post, and Davidson. Then we

Chesterfield )mith 8

had the group that was generally in favor of some type of national

plan of certification, but the group was primarily composed of

Charles Joiner, though there were some sympathies for that view-

point that were held by the other three of us, Bill ivarschall,

Leonard Janofsky and me. But we felt that we could logically deter-

mine the benefits that might flow from specialization and we doubted

that they yet outweighed the detriments that we feared might happen

to some of the existing status quos of the profession, such as the

way people practice and live and operate and are formed into business


it became quite apparent, though 1 didn't know anybody to start

with, that I had a great impact on the committee and that even those

vwho had other views did not want....I could tell that I had too much

influence almost. I had to be very careful. They wanted to get

along wiith me. ,4e worked very hard. -Ve probably met twelve times

the first year, coming from all over the country. je started drafting

a position paper that I drafted and we redrafted and ultimately we

released a preliminary report for comments; we then substantially

modified that and at the end of my two years, we presented a position

of the House of Delegates in which we stated that it was not now

timely for the American Bar Association to embark on a national plan

for the certification of specialists but that we would like, in the

brandeis model, to engage in some experimentation at the state level,

and we asked the states to try various types of specialization pro-

posals. ue made suggestions as to what they could do and consider--

Chesterfield Smith 9

not less than three and not more than five, so that we could

evaluate tnem. In the meantime, we asked all other states not

to adopt any plans so that there would not grow up to be a

divergence of plans throughout the nation and that we could

continue to look at it.

The plan, like all plans, hasn't worked either successfully

or unsuccessfully. The worst part of it is there's a lot of

activity in the states and two things one, we've got more

plans now working than we wanted; and second, for various reasons

the american Bar Association and the Foundation and others have

not been able to devote the time or resources or determination to

a monitoring of the plans. The monitoring program wasn't thought

out in advance enough or financed enough and so it's now about six

years later and nobody knows a hell of a lot more than we knew at

tnat time. Of course, there are about four plans now in existence

and there must be another ten states that are close to putting in

plans and the ABA is again thinking of national certification.

I never have thought that that was a very important issue and

don't yet because the states continue to regulate the form and

structure of the legal profession through bar discipline, ethical

standards, and grievance procedures, and the American Bar Association's

primary role, insofar as they are concerned, is to be an influence

and a coordinator. I think that ultimately if the states go in

specialization, as they almost certainly will, that the American

Chesterfield Smith 10

Bar Association will have two primary roles in specialization:

they will be heavily engaged in specialized education and con-

tinuing legal education far beyond what's contemplated at the

present time or what's being done now; when I say contemplated,

well obviously, some people contemplate it. I do and we just

established a new Division of Continuing Legal Aducation in the

bin hopefully to get ready--during my year we did--to get ready

for this real movement into continuing legal education. I

envision that by as early as 1980, the budget for the American Bar

association continuing legal education may well exceed the combined

budgets today of tne American Bar Association, the Foundation and

tihe -ndoment because of specialized legal education and continuing

legal education requirements that presently exist and are not done

very well. That may be a little early; I certainly don't have any

fear in saying that by the year 1990 that would be true.

The i,cCalpin committee, while I was on it, got off on legal

specialization. Of course they considered many of the topics that

nad oeen topics for considerable discussion within the American Bar

association, and state and local bar associations and lawyers gen-

erally, in 1966, 67, '68, '69, '70 and continued to date, some of

tnem more or less. Among the things that we treated with and are

still active subjects for consideration and were during the time

that 1 was getting involved in the ABA, are the subjects of para-

professionals, or legal assistants as we now call them, legal aid

and legal service programs for the poor as funded by the federal

Chesterfield Smith 11

government,including various ways to do that such as neighborhood

legal offices or full time professional legal aiders, or judicare,

upon which our committee spent more time than on any other in the

subject of group legal services.

The present positions, I guess, of the American Bar Associ-

ation on group legal services are about where the McCalpin committee

was in 1967. i"ll say that I think, if the ivicCalpin committee would

vote again today, tnat we've evolved on much further down the road

but this was a new concept and we wanted to be cautious and fair

and not disrupt professional values that had been proven over a

long period of time and so we tried to broaden the use of group

legal services, but we tried to put restrictions on them.

One thing that we did not do, we did not in any way draw' any

kind of distinction between so-called open or closed panels, but

w~e did restrict the development of them to some extent. I did not

understand then, and 1 do not understand now the opposition to those
services other thanAunworthy motives. 1qcCalpin and I debated it on

tne floor of the House, when Ed jright's professional code was

presented. e argued it and lost it. kiy own state of Florida and

others generally followed what the iicCalpin committee said on that

and when we adopted Ed WJright's Code of Professional Responsibility

dov n here we modified it to include the McCalpin committee revisions

primarily. It was not because of me that they did that. They

reached that result on their own in committee study though I cer-

tainly tried to do what I could to get them to do it.

Chesterfield Smith 12

I was really and truly hooked on the American Bar Associ-

ation because of the iicCalpin committee and then the specialization

committee. I liked both of the people and I considered them both

very good people and they are still among my good friends. I

think that the quality of the iicCalpin committee is slightly

higher than the specialization committee overall. I'm sure it

will always remain a highlight of my American Bar Association

activity. Bill .icCalpin, I'll certainly say if I'm doing any oral

history, was a magnificent chairman and was clearly the intellectual

impetus to the committee's activities. I don't know any more qual-

ified or capable or clear thinking or honorable lawyer in the Ameri-

can Bar association today and I consider him one of my dear friends

even though I had not known him personally before we met on the com-


That's the way I got so hooked on the ABA. I had in the mean-

time, after serving as president of The Florida Bar, been chairman

of tne Florida Constitutional Revision Commission and hadn't prac-

ticed law hardly at all in 1966 while we were doing that and to a

lesser extent 1 continued to be active in that effort through '67

and '63 until the people ratified and adopted the constitution of

Florida. And I stayed there, but I decided that my law: firm was

stabilizing--it had been a young law firm--and as I stayed away in

constitutional revision I found that many of the young lawyers that

I'd hired ten years before were mature and able to handle the prac-

tice with me being gone and I got more and more interested in.

Chesterfield smith 13

6o in Dallas, what I believe was 1969, I was president of

the Niational Conference of Bar Presidents; my program had gone

well, I had arranged other programs before then at mid-winter

meetings, and had a great deal to do with arranging the program

in Philadelphia because my predecessor had a heart attack. It

had gone well and a lot of people had been complimentary and

friendly and nice and somebody--I'd name this person but he

probably didn't mean it--saids 'vhen are you going to be president

of the American bar Association?' I liked it. I thought about it

and 1 tentatively concluded to explore the idea there.

i came home and I started exploring the idea immediately with

my florida friends. One close good friend of mine was named Reece

bmith, who at that time was secretary of the American Ear Associ-

ation--he's eight or ten years younger than I am but we have been

friends a long time back in college and law school--and he had

started working very early in the American Bar Association and had

been in active work up so to speak all the way from the lowest right

on through. He was interested in running for president of the Ameri-

can Bar Association but frankly, while he had great stature in the

American Bar Association at that time, he didn't have the stature

in Florida, and 1 guess to some extent both he and I knew it. He

didn't want me to run. He said that I was moving in on his terri-

tory, so to speak. He didn't use those words but something like

that. 1 talked with some of our mutual friends in Florida who have

been active in The Florida Bar and then through the past president

Chesterfield smith 14

route had become members of the House of Delegates and have been

active in the House of Delegates.

I've gotten off base. I didn't go into the House of Dele-

gates in '64-'65 because iicLwan wanted to be there. I told

Mictwan later it wasn't just me, there was a new president by then

behind me and we all told him that we had checked and he wasn't

doing anything in the aBA. So they replaced the two oldest past

presidents up there, one of whom was i'icLwan, who had been about

eignt or nine years before, with me and my successor who was

Aobert zrvin, who is now tne State Delegate from Florida. Je

were bar delegates along with my two predecessors, Reginald .illiams

and Delbridge Gibbs. Delbridge Gibbs was president when I ;as

president-elect. .e four q ere in the House from Florida and I

nad tnounEt 1 ras a very popular, if 1 may say so, president of

Tne Florida Car, and had gotten a lot of things going down here

and I had considered after I got on the ricCalpin committee, because

somebody told me it was the thing to do, running for state delegate.

The then state delegate, a lawyer named Lance Lazonby from

Gainesville, talked me out of running at a mid-winter meeting in

ihew Orleans, whenever that was, I guess '66, maybe '65--i can't

remember--because he said that it was his life's ambition. He'd

been a past president of The Florida Bar. he told me I could

easily beat him and 1 agreed with that. He said that it xas his

life's ambition to go on the Board of Governors, that he had it

Chesterfield -mith 15

worked out, he'd worked according to rotate and it was coming up

in a year or two and he just wanted to do that more than anything.

uYe'd always been good friends so I agreed not to do it.

That must have been about '66. And true enough it did come

up the next year and he was elected to the Board of Governors. He

resigned, I'm quite certain, in 1967 and he was nominated to go down

to the annual meeting. Reginald iilliams, who was the senior bar

delegate, succeeded to his term which had just one more year. I

vas in the House and stayed in there as Bar Delegate,I guess in

'6o, 'o7, '63. I don't knov, maybe just '66, '67.

In the spring of '68, and this was before I'd ever even thought

about running for president, I ran for state delegate against two

Florida lawyers who also had been past presidents of the Florida Bar,

0. B. iicEwan who asked me to stay out so he could stay in there two

more years, and Reginald Williams who was two years before me as

president and who was then the interim state delegate. I ran against

them and we worked so hard that we wouldn't have worked any harder if

we had been running for governor. Nothing like that had ever happened

in bar circles in this state. Regie rilliams is from Miami, and had

been a past president of the Dade County bar Association. The ABA

required that for you to run, 25 ABA members nominate you. He took

the nominating petition and had it duplicated and-I'm not sure, but

to my recollection there were about 5,500 members of the ABA in

Florida at that time--and Regie worked and contacted all of them.

Chesterfield smith 10

.ie all got lists from the ABA of the members. He contacted so

much that he had somewhere around 3,300 who had signed nominating

petitions for him and he just felt for sure that he was going to

win. But I wrote letters and my partners wrote letters and we

contacted people.

Of course one of the problems anybody has in Florida is the

lower East Coast where, if you take Palm Beach, Broward and Dade

County, half the lawyers live. ve were concerned about how that

mignt block or anything so I worked hard down there and eventually

I won. You win by being high man but I had more than the other two

together; I got as many votes about as Regie had nominating petitions,

ne told me later, and he later told me I'd just been chairman of the

Constitutional Revision Commission and he said nobody in the world

could have beat me. he said he was sure he had it locked up and

ne couldn't have worked harder and so on but we'd worked hard. I

agree i didn't think they were going to win, I thought I was going

to. .,cW,.an by then had become kind of disgruntled and he ran a

poor race. He got about 7 or 800 votes in total, I think, I had a

decent margin over the two of them combined but Regie .jilliams had

run strong, he'd run strong in Dade County there. So I was the

state delegate by then and that gets in the power broker structure.

I guess I was elected in the spring of '68 and took over in

Philadelphia at the end of that meeting, the annual meeting, and

so I nad voted with the state delegates at their meeting in '69

Chesterfield Smith 17

before I got to Dallas in "ugust wnen I first decided that I might

run. I talked to all of these people and was trying to get a united

front and get them to help me and I advised them, though I didn't

have to, that I was going to resign as state delegate. I was talking

primarily to Fletcher Rush and Bob Ervin, and they didn't know much

about ABa politics at the time. They know a great deal now.

je finally called Reece and he was thinking then of running

for president of the Florida Bar which he later did in a contested

race in which he handsomely trounced a very highly qualified opponent.

I told Reece that I was going to run and whatever he did was up to

nim. he vias talking he wasn't going to do this or that, but he

didn't think I ought to get into it. ie finally agreed and sup-

ported me 00Qo wholeheartedly when I was later running and working;

he knew a great deal about the association and was helpful.

Then Bob Lrvin and Fletcher Rush flipped a coin to see who

would get to be state delegate; it wasn't that automatic but we were

going to maneuver and work to it that day. They were both bar dele-

gates and by kind of a fluke Rush had one or two days seniority on

.rvin. jve worked it out. Ervin won the toss of the coins so he

later became state delegate and still is. He's now one that raced

at least twice with his own name.

ie started helping me and we started putting out the word and

ve campaigned just a little. Reece told a few people that we were

Chesterfield smith 18

interested in it at the mid-winter meeting in Atlanta and after

atlanta we went all out. We, I say we, because they all did too.

They all started writing letters and we'd go and talk to people

telling them that I was involved completely in the ABA. By then

I'd gotten off the spec... where'd I get lost?

Mi '69, '70 you got off the specialization committee.

Ui ~ight after '69, after Dallas, and I'd decided tentatively out

tnere and I talked with iance -azonby, who was still on the Board

of Governors, abou- it. we all came home from Dallas in '69 and

1 was talking with some people about it and about me running and

Lance killed himself in early September which was right after the

meeting, a suicide, he had. :e was an alcoholic and he became

disgusted with himself as we all think and he killed himself. I

was the state delegate and Lance had one more year on his term.

under the system, all of the former house members and present house

members from our four states down here were eligible and they all

voted but generally they rotated and Florida has more ABA members

than the other three states together. I knew they weren't going

to mess with us and that as state delegate I was chairman of the

delegation and all and so I had decided to run and all of my friends

thought that this was perfect now; in fact they had felt beforehand

that one of the problems I had was that I was new in the ABA and that

I wouldn't have any experience.

Chesterfield Smith 19

So 1 served under Bernard Segal, while he was president for

one year and was heavily involved, of course. I got off of the

specialization committee as I went on the Board of Governors.

(In fact, the coin we flipped, we flipped I think after Lance's

funeral to see whether Fletcher Rush or Bob Ervin would succeed

me as state delegate.) We were all three allies and friends; Bob

had followed me as president of the Florida Bar and Fletcher Rush

had followed Bob. And so we went all out working in the ABA then

and vie got heavily involved.

Ed aright started advising me some and Barnabas Sears and I

had a big party at the annual meeting that year at St. Louis at

whiicn it '.as publicly announced that I was running. I had decided

not to run against Robert reserve and Bert Haywood because Ed ;Jright

had convinced me that if I'd wait one more year I'd probably not

liave any opposition, as it turned out. And so I did it. I con-

tinued to be active in the ABA right up till the time that I became

president-elect nominee. I knew a year and a half before I became

president that I was probably going to be elected without opposition

because, assuming that people meant what they said--I don't want to

call it locked-in pledges--but I had enough commitments to be elected,

and so many people had looked at it and counted votes and dropped out.

among some of those who thought about running against me at various

times were James Fellers, the present president, and Bert Jenner, a

Chicago lawyer, who did run a couple of times and John Lashly who

later ran the next year and was defeated, and Beverly I'ioore from

Chesterfield Smith 20

iorth Carolina; I used to hear a new name about every week but

they didn't do it.

1 say in conclusion that I accept the premise that you

enunciated that I had been involved in ABA activities a very short

time as compared to most of my predecessors as president of the

Association. But without wanting to be modest about it, I have

always felt that my involvement was more intense by far than any

other president that I had known and that I had been more totally

involved in the ABA in the seven years before I became president

tnan any other person in the Association, even including other

people on the ,:cCalpin committee. Because at the same time the-

..ere v;orking there, I had been completely involved in my state bar

association where I had worked approximately 70' of the time on the

state bar, 30, on my law practice and in other involvements and I

felt that 1 was fully qualified, fully knowledgeable and that I

knew how the Association ran and what made it tick and I knew the

structure and the history of the Association better than other people

*.ith whom I vwas involved, and I still do.

So the recital of all of that history--obviously there were

days and hours and months that I spent on things but the only hard

bar race I ever had was that for state delegate for which I think

my office spent over three thousand dollars on postage here--for

a nothing office, so-called. Regie Milliams must have spent 10

or 12 thousand dollars, he was just it out. I don't know

Chesterfield imith 21

ho.. much we spent on telephones. I did that because by then I was

involved and I wanted to do, even though at that time I didn't knov.

I wanted to be president. The rest of the races that I've had in

the bar races were not races. I was elected unopposed as president

of The Florida Bar and unopposed as president of the American Bar

so 1 had just that one race against those other two presidents.

It worked .

The reason 1 was unopposed in the American Bar Association was

because I'd worked very hard to be unopposed and had done, in addition

co doing very terse bar work, I had done the political things necessary

and I had the colmnitments and had it locked up. So I'm excusing

myself, 1 guess, to not be a johnny-come-lately. I was about 48,

'7 or '3, when I started in the American Bar Association. It has

been an intensive ten years of American Bar Association work.

Frankly, I know for example three presidents I served under,
thataknew far, far more about the American Bar Association, its

structure, its operation and its relation to bar than did Bernard

begal 'iho had done such wonderful work. He'd defended the judiciary

coinittee at the national level but had not been as extensively in-

volved in what I'll call total nuts and bolts. I knew more about

the ABa than did Leon Jaworski and Bob Meserve, both of whom were

,ood presidents, especially Mieserve. And I knew as much about the

.merican bar Association as James Fellers did who told me at an

AB meeting that since the year he was admitted to practice, I

Chesterfield Smith 22

think he said in 1938, ne had never missed an annual or mid-:' inter

meeting. e had been tinrough the chairs and I knev.. I didn't kno,.

any more than he did about tne AB-. but I knew as much. I felt that

I had a better understanding of some of the other national bar re-

lated organizations than he did. But he was certainly knowledgeable

about the ABA. So I didn't feel any deficiencies even though I'm

sure that there's certainly, in the modern history, nobody vho V'as

elected president seven years after the first meeting he ever went

to. Because I had worked hard in that seven years.

.. : .r. Smith, ho\ did you happen to be appointed to the legal

services and specialization committees? Both are very important

to tne profession and the public. I'm sure it isn't coincidence.

u;: ne specialization committee grew completely out of my service

on tne availability committee; one of the things that we had studied

in n-e .icCalpin committee was specialization. ie recommended that

there be further study made on it and that the special committee

be created to consider only that subject. That was done about tvwo

years after we started; I had spoken on that as much as anybody and

I'd talked about it in the committee and so they appointed me chair-

man of it. The only one from the committee that did. I continued

to serve on the ilcCalpin committee for one more year.

I aml not sure w'hy I put on the i-cCalpin committee and I

would say that there are multiple reasons. One is that I w,,as a

Chesterfield Smith 23

fine state bar president and that's where committee people quite

often come from; as they go out of office in the state bar, a lot

of presidents are aware of them and they appoint them. Lewis Powell,

wally Craig and Sylvester Smith had been in two or three of our state

bar meetings. Leieis Powell was there and we had become acquainted;

I'm sure that our Florida Bar impressed him because it's still one

of the very finest state bars in the nation as it was then, and

heece Smith oas assistant secretary of the Association. He at

least is the one who told me I was going to be appointed. I had

been around, I don't know what was said, whether he said this is a

great bar president or what. I remember him telling me before

that I going to be. He was my friend from Florida.

.je ..'ere not in the advance in those areas in Florida. ie were

very advanced in many areas; we were advanced in continuing legal

education .,here I'd worked; we were advanced in discipline--had the

finest program in the nation; we were advanced in judicial reform

where I spent a great deal of my time as president of the state.

But we hadn't worked in specialization and the delivery of legal

services and those types of things. I had written some articles

when I was president of The Florida Bar about the civil rights and

the obligation of lawyers to see that all unpopular defendants were

j- OF iAPL 2-B

3 2-l.7 1l-G- OF 'j '- A-ii
ZZ _L_ -LT L -

Chesterfield smith 24

just as defended as the popular and that everybody was entitled

to a lawyer and legal defense and that the adversary system

wouldn't work without it but none of them had been really on

availability. It was not a subject that I'd even read on,

though it had been written about by then by E. Cheatham and others.

I don't know how I got on it but I know it was a great thing

for me and I enjoyed it. It influenced me to the rest of my A3A

activities and I am substantially convinced that I never would have

been active in the AEi if i nad not gotten on that committee. i-any

of r;- friends still remember it, say I told then I wouldn't go to

he ,~ia and I told .nem I didn't like the ABA, that I thought it

-as a group of selfish self-seekers and that I was going only during

ane years that I was president because I thought that was part of

the duties of being president of the state bar, but that I didn't

intend to be active, I didn't like it, and that they could have it.

'ne; re.ieer e saying that now, of course, but in fun. But t"..

..c3alpii coir-.ttee s,.,itc.ied me. 'ihey ':ere wonderful people and .Smith, wouldd it be fair to say that there are two 'ways to

the presidency, over-simplified perhaps; first, through hard work,

perhaps political, and second, simply long service over a good many


Chesterfield Smith 25

Ss i think there are other ways. jre'll take the present presi-

dent of the Association. He's earned the right to serve. He's

worked through the chairs, he's been in all kinds of activities at

tne American .ar Association level and he was president of his state

bar association. -'itnout doing more than crediting him with at

least a satisfactory job in all of those jobs as he %.alked up the

chairs, on that basis alone many people would feel that he or others

like him would earn a shot at it from time to time and he has. I

think he's done better than an average job in many of those things

and i'm not suggesting it but I'm just saying that you can go up

that route too. j we've had other presidents that have gone up that

route in the past.

Another route that you can go up is to be a very prominent

lawyer and come in to the Association with the right friends and

the right support. Leon Jaworski went that route. He had served

aS president of the state bar of Texas but he had not been involved

to the extent that some presidents of the state bars have been in-

volved with the ABA. He was well liked, well known, well respected,

but he hadn't worked--he'd done some work, but not extensively in

the aEn and frankly I felt that it shoved during his presidency.

Another thing you can do is, like Bernard Segal, wiho had never

been involved in bar politics, or bar machinations or ABA activities,

but he had been totally immersed in the federal judiciary committee

and had almost created that committee and had by one-man superhuman

Chesterfield Smith 26

effort made it into whatever it is today almost. He was recognized

both for the brilliant job he did as that chairman, and perhaps to

reward somebody that would work that hard and make such an effort

over a period of time viith such results and success.

And you can pick others that did. I think in olden days as I

understand it, there was more of an emphasis on ABA activities and

it iwas almost a requirement tnat you had been involved in the Board

of G-overnors and through the chairs. I concluded rightly or wrongly

--because 1 did:nt out it to the test--that it vas not important to

be on tie ioard of Governors and that what v,.as no:.. important as to

be a successful state bar -resident, that the power w'as shifting

awlay from '..hat I'll call the national-interested la.'yers back to

la:..yers v.ho ".ere working in the state bars; it was shifting perhaps

away from the so-called Eastern Establishment out into the states--

ny state has no*. the fourth largest bar association in the country.

People don't knoi: tnat. They don't think of that. 1Iy state's gro>.n.

It's shifting this way. I say I've never proved it because I had

served on the board of Governors for one year by accident after I'd

already concluded to run anLa was running. And -ance Lazonby, who

,,as on tne Board of Governors, had encouraged me and "ias helping me.

Ine people are now,, I think, proving that there are other ways

to get elected besides being a state bar president, but I think that

it's almost fair to state that it'll be only in rare instances in

the future. that there'll be anybody elected president of the ABA

Chesterfield Smith 27

hno was not a major bar president. And by major bar president I

would include very small states. Those will be rarely elected who

didn't so serve and they will have at least served on the Board of

Governors of the ABA. But state bar service is more important than

A3ii service now- and from henceforth; now, you of course have to

combine them, but they come out of the state bar ranks and will

;-itn increasing emphasis, I think.

2ol-iics can get you elected and I doubt that anybody else had

ever :oliticked exactly like I did to be A3A president and I now;

:-otice nhat they all are doing about like I did and following it.

.cimiecody else iwill devise a ne\w system and a new way somewhere down

hie line, but since I was elected without opposition, well, those

,,- ran after me these two years and those who are already running

for te next three years that I know about are all following the

sae model. most of them say they have written down exactly what

- did and will do it exactly like it as far as politicking is con-


i think the reason that politicking helped is that our system

nas generally resulted in at least good men being elected president,

and in many cases, superior men, and the reason that that's done is

-hat an overwhelming majority of the state delegates really do want

the best man that they can find to be president of the Association.

-the have to, of course, choose among the available alternatives

a-nd that is somebody who's willing to do that and sacrifice, give

Chesterfield Smith 23

up his practice or his job and so he's not the best man they kno-.

necessarily, but the best that they can get. And of the candidates,

they evaluate them on the merits.

One reason that it's hard to become president in a very short

time is that they have very little way to evaluate you on your merits

except by -orking with you in a bar activity. It's hard to have much

legal contact if you're in Lakeland, Florida with somebody from

alaska, we'll say, or Miontana and so the way people get a'.ay from

tnat over the years is many,.many years of contacts and service,

like Jimmy Fellers vwho's kno\rn some of those people that voted for

nifL in the -iaii for almost 40 years. That's the way they get around

to having contacts.

the way 1 politicked--I won't say I'm the first, I just don't

know. of any others--decided that every state delegate \ as entitled

to know, my views on any subject connected with the American Bar

association he wanted to if he w'as going to vote for me, and if I

didn't know him, I needed to kno' him. So I went to find him and

I told him I wanted to discuss any issues. And I've discussed with

many of them, for example, group legal services that w;e were talking

about earlier. They disagreed with me completely but they knew

vinere I stood and what I thought and we'd talk about all of the

issues. I'm not a single shot man'and I was interested in multiple


Chesterfield Smith 29

i,o,': a lot of them are doing it and state delegates are no..:

asking candidates, almost like political candidates, to enunciate

.,Aat do you believe in, what are you going to accomplish, .hat are

your goals? ind I commend that as a much better 'ay than the

cronyism that sometimes nay nave affected it in the past.

Lut I very strongly suspect that the most influential roles in

tae shapi.n of national legal policies through the a5A and thus in

tie in are no state bars and state bar presidents and not sections

and not large firm la,.yers and not an; of the other special interest

rou S, and tnat tAis is a trend tnat .:ill continue aL c I think it

is a ...olesome one. i-n ,ivrs ity of tne e-gal profession is such

.lnat I don't Leno.. t-It ..c'11 ever nave th-e iIricEr ar association

a.s federal government for state bar associations because sone of

a.,l:. sare integrated or unified, and some of the"i are volu'-nty; they

all iave different structures and in some of the -norc ncinlt st-te

tie ci t ars are at least as proni,-ent Dr ;i;re pro.-i-en't t-i2 tile

state bars, but those bars I'm including in the importance 5a.nd

structure of it. I can see right no. in the association five or si::

state bars that have more to do ,;itn -sha-in the outcome of contro-

:vrsial issues than any other outside area or group and more quite

oft-en than sections of the t~LA or other activities ..ho have a voice.

because the state bars nave a voice; in fact, the state anc local

bars and other affiliated groups elect slightl-y more taar. half of

e m-embership of the -ouse of Delegates and it ,;ill increase from

nenceforti, 1 think.

Chesterfield smith 30

If the House is ever restructured, their influence will only

increase, it can never decrease. I think that they are also getting the state bars follow the ABA much more and they instruct their

delegates quite often or discuss with their delegates their positions

and advance it. Ihey are entitled to do that of course, since they

elect them. and so 1 feel that I was in the middle of a movement

in tne AiDA--v -hen I say in the middle, I don't mean that I was in the

thiclZ of--i '.as about halfway in betvieen, in an evolutionary move-

ment in -hich the state bars were assuming a more dominant role and

I ,as a beneficiary of it.

LTe most single influential thing in my being elected president

of tie American Iar Association lias ,hat I consider to be a highly

successful conduct of t\'o day meetings of the national l Conference

of' ar Presidents, -hen 1 got national contacts for the first time.

nLe i:,pact u;i-thin me that v;as important ,,,as the I.cCalpin committee,

but. tiat ,as not important politically or anything except insofar

as iS helped me to do a good job in the iIational Conference of Bar

residents, were I brought all of those issues out and put them on

-ne program and had tniem debated and covered and participated in.

But I'd say the nationall Conference of Bar Presidents is a breeding

ground for presidents.

i.i; It seems to me that the ABA role as a spokesman for the profes-

sion has al,,.ays been some',hjat ambiguous; in some instances one gets

the impression that the AB~ would like to be a power like the AMA,

Chesterfield Smith 31

i.ith which it is often compared, and in some cases this does not

seem to be so. Instead the ABA people try to get increased partici-

pation of individual lawyers in the ABA. Is this true, or how does

it seem to you?

iS I've considered the ABA far stronger and far more powerful than

the Ai.a, for example, which I consider an entrenched trade associ-

ation that puts professional interest far above public interest. I

don't believe the ABA does, though certainly there are some trade

association aspects to the ABA, and perhaps properly so, only to the

extent tnat they may be necessary to keep unity and support to bring

maxi mum participation in issues. I think the ABA has an overwhelming

influence in the way the legal profession is structured and run if

tney ever arrive at a solid position CbecauseD the legal profession

is inextricably inter~voven with the court system, which the medical

profession is not, and with court discipline and with state laws

therefore. You can say, well, doctors are admitted by states too,

but tney are not thereafter governed on a day-by-day basis and

involved with ethics that are promulgated by one of the three branches

of government.

5o the impact is, I think, that we shape our profession at

least as much and probably more than the medical profession. I'd

put it on a substantially equivalent basis insofar as impact on

the profession is concerned, but when you get to public issues

outside of professional interest, I believe that the legal profes-

Chesterfield Smith 32

fesion and the american Bar association to the extent that it

speaks for the legal profession, and it does on many issues

nationally, have far more impact on the Congress for example than

the AiA, even though we've chosen not to set up a political action

commi-otee or contributions or move into those iays because in a

general sort of ,ay I think that most positions the American Bar

Association takes are credited with being motivated by a desire to

improve and not just to protect or self-serve themselves.

There are exceptions, the image on no-fault is certainly one

of elself-servin. have favored no-fault myself for many years,

tnougn I oppose national no-fault. 1iot because I wouldn't be even

willing to have a national government in those state governments,

but as long as we have state governments and we have different

histories and laws and court structures and systems, then I don't

think that you can gain anything from national no-fault that you

can't gain from the same kind of law at the state level. Therefore

Save favored my state adopting UINARA, for example, or something

of the sort, just like the national one. I think that's a position

that 1 almost can say is the ABA position no,,. Its been evolutionary

in a traumatic sort of way and it 4vill be voted on in Chicago next

week or week after next. That becomes the official position, but

,ve almost have no position that's feasible and left now and so I

think tney will accept it this time.

Chesterfield Smith 33

I.: One thing I -w.ould like to know about a presidency is if there

is a traditional role for it, one that has evolved over a number

of years.

1z jell, everybody has to do it their own way and they all do it

different but the staff, of course, tells you what they think you

ought to do. A lot of that is not very original or innovative

thinking and to that extent they are merely reciting what appeared

to be successful that others had done in the past. There is a

problem of exactly lhat the president should do in any organization

like that, ho, ceremonial he should be or maybe more than ceremonial--

that's -6he -.vrong -.ord I guess--but how much he should be the public

spokesman and the guy out-in-front or how much he should get involved

in the day-by-day nuts and bolts of running the Association, including

bozn the staff and the committees and the affiliated organizations,

and ..nat total responsibility he should take for example for other

organizations in the legal profession that have connections with the

american Lar association.

i myself think that I would have done materially different as

president if watergate hadn't happened and that a lot of my actions

after W.atergate were not necessarily deliberate or planned but evolved

and I felt like it was the thing to do. I spoke too much. I don't

mean spoke out too much; I made too many appearances, I made too

many commitments, I travelled so much covering the country that I

didn't get to work on some of the projects that I had '.:anted to work

Chesterfield smith 34

on and therefore use the office of the presidency to achieve some

tnings, like taking spencer Kimball and knocking his head about

why he didn't devote more resources to monitoring specialization

programs. He wanted to, but like all administrators he had a budget

and he had otner priorities and other demands. Well, as president

of the Association, I could have usurped some of those other demands

if I'd really put the heat on; but you can't do it just by saying

what's the problem and why don't you do it because I had to decide

on what were my priorities and when you decide, \well, other people


;pecializationi had been one of the things that I wanted to w'ork

on and I didn't do anything on that. But there were a lot of other

ings. I workedd' on group legal services and. I believe that we're e

going to ;.ork thaT out. I've got the warring factions together and

Stink it's going to be adopted. I brought them all together and I

-cold them a tha tney had to agree and so they're agreed now:. Jimmy

Fellers served as chairman of it this year and it's fine and I thii-n

thne are going to eliminate all of the disputes about open and closed

paniEls. I certai-.l ho:e so. It .a- a silly argument.

I don' t kno;, :hat the question ,,as but in a general sort of w.'ay

1 don't think that anybody operates very much the same way, but the

duties of tae job are such -hat a lot of the things you have to do

the same w:ay; for example, one of the silly things that happens is

tnat the president controls tne annual meeting and therefore since

Chesterfield Smith 35

he controls it he has some responsibility about all the program
and has to approve everything. I feel like I spent too much time

on the annual meeting; though I also didn't do a lot of things.

There are also all kinds of people who expect you to be at

their places judges, the Supreme Court has receptions, state bars,

local bars, and they'll say, ". we've had the last eleven presidents

of tne A"..' The last six months, after I became an experienced

president, weil, that was a negative to me if they said they had

tne last eleven. I'd nave an immediate conflict; there wasn't any

S coid consider it. Take the i:ivLanis Club in jashington D.C.

as an example, tiere s a prominent lawyer there who' s taken great

pride in- that he knows every president of the ABA and he's gotten

him- to soeak. aell, it's a silly place you know and I didn't go.

xnc nie -.,as a friend of mine and he told me they had the last seven-

tee-n presidents I think he said of the ABA there. So those things

ta-e a lot of time.

You are president-elect and you get the opportunity to decide

.nlat you -want to do and how you want to do it and most of them do

it different. 1 started something new; two things new that were

ne-Lpful to me. One of them, I created a committee and funded it--

the Board of Governors created it but I asked them to do it--to plan

my service as president. I had position papers prepared by the staff

on all of the things that I was interested in such as the relationship

of ABF, 35, and ABA, such as group legal services, such as continuing

Chesterfield Smith 36

legal education, such as professional discipline and such as the

jashington office, to use some of the things you mentioned in there,

and I had position papers and we went down to a retreat. I picked

fourteen lawyers that I had great respect in, including all the

young members of the vicCalpin committee, and I would have taken

the old members except I thought it was a bad image--some of them

i.ere in their seventies then--and we went down there and debated

those things.

1 generally nad a lot of programs that I planned to do but I

go- involved in the Jatergate, in .Saturday iight Massacre, and other

duties that I didn't get to do as much of legal services. The i-cCalpin

committee, I w-as the first person (sic) I believe in the world that

ever proposed the present national legal service corporation. I'm

.orr:yin about a lot of things that I didn't get to ;ork on.
LO,_,l .b o Q F_ Ut Eot o '"r .......

'The otaer thing did, I beefed up my o.n personal staff so

tnat I had people travelling and working right %.ith me that wouldd

digest things in i~hich I was interested so that I didn't spend all

of my time reading. They would prepare rough drafts on nevw speech

subjects that I wanted to do. I suppose I delivered about three

hundred speeches, and about 275 of them ',ere off-the-cuff. All

state and local bar associations off-the-cuff, but I'd want to

cover new subjects and they'd start working on them and I'd start

editing drafts and ,e sometimes would work on them three months

before I'd deliver them. I've prepared major speeches, to me major,

Chesterfield Smith 37

on lawyer advertising, on recertification, on discipline and on

group legal services in the last year. n lot on ,atergate and

oixon, on such things as medical-lawyer relationships and consti-

tutional revision, I don't know, the fNational Institute of Justice.

ii You mentioned the fact that the Foundation did not come up

,,ith a study on specialization.

: i*nat Nas"n' a bad problem 'ney just never have, tney are

.orkinL at it :1io, tney just can't wiork very fast and they don't

nave tie staff. I understand tne problems; they can't gear up to

a major effort and tnen _not have something for the men to do then.

They can't concentrate all on one thing. I went into it and know

about it. Dut I didn't do anything except ask them. I could have--

i'd nave had to knock a bunch of heads to make them do it and I got

interested in other things.

'; The relationship between the aBA and the Foundation has never

been really clear, the Foundation is....

a; I know it's not clear and I'm going to do something about making

it clearer myself. 1 think that Bert Early and Spencer Kimball ought

to vork much closer together then they do and there ought to be much

more coordination; that was something that I intended to do something

about but i didn't. You've got it recorded and I'm happy for the

Foundation staff and all of its officers to hear that I have felt

Uhesterfield smitn 38

tnat tne Foundation needed to be more responsive to the officers

of the American Lar Association and to its Board of Governors.

legally the American Bar Foundation is controlled by the Board of

Governors of the American Bar Association and sometimes people over

there forget it and it's my purpose to strengthen that relationship

and to make it understood over tnere.

I don'tt be able to do it if 1 don't do it between no%-: and

najust, out there's been a committee appointed for this purpose, to

le-c tne Foundation kno,. tnaat they should be more responsive to the

Zoard of Governors and the iAmrerican rar -association and that there

should be more coordination and cooperation in projects. Ir a gen-

eral %,ay I think that the primary targets that the American bar

Foundation o., ns nave been proper and correct and I think Spencer

im-nball is one hell of an executive director or public servant. I

really liked him from the day he came there and I think that he's

got the program moving and straightened up but nobody in considering

- e research projects--and pure research projects; I don't want to

bet into practical things over tnere--looks and sees that the Ameri-

can Dar association is doing or not doing. It's almost by happen-

stance taat you find out that the ASA is doing something or the ABA

finds out you are doing something and there ought to be a much more

formal thing and in those fe-; things w-here they get to be critical

things such as legal specialization or something, the Foundation

should bend its gut to do ;.hat the ABA Board of Governors v.;ants to.

Chesterfield Smith 39

Frankly, as I asked Griswold at Honolulu (I was the

immediate past president of the Association then by about 12 to

15 hours), 1 asked him a legal question: 'Jould it be a proper

tning from authority standpoint only if I nov. made a motion as a

member of tne Board of Governors of the ABA to abolish the American

Bar Foundation? Did we not have that authority?' He said: 'Yes,

you have tnat authority.' 'Ivell', I said, 'I don't want to of

course, I simply wanted somebody vhen we're talking about cooper-

ation and coordination to recognize that if vwe geT at ultimate

cross-purposes that that's what we could do over here and that we

nave the authority and pov:er and that you don't have the authority

and poer. ,nd I like in general vhat you're doing but \vhen we ask

for something it ought to be forthcoming.' 'iell, he didn't agree

..ih that, of course, but then I made a motion instead that a com-

:.iLttee of tie members, and tnat's of course of the Board of Governors

of tne nb, consider ',nat the relationship should be and 'ihat changes

i the by-la
in Chicago.

iiaynard v:asn't there, he didn't understand it that w;ay and the

minutes didn't get that way. But I don't want to be....I'm very

.roud of tne American Bar Foundation and I have worked hard as a

member of their board to follow the programs. I thought that on

1he things tnat were presented to the Board that the decision \was

generally correct and right, but I never was convinced that the

coordination and cooperation between the ABA staff and the Founda-

Chesterfield Smith 40

tion staff \,as what it ougnt to be and I never did know whose fault

it I w;as inclined to think that it was possibly the ABA staff's

fault, but I wasn't sure either way.

There is certainly a feeling, that I think is not necessary to

the well-being of either, for the Foundation to consider itself com-

pletely autonomous, separate and apart. And they are not. That's

;hy I made the point: '.jell, if I'd make a motion to abolish you,

can 1 do it?' Yes sir, .e can do it and so that would be the end

of tnat and so you are not separate and apart; yet, v/e want them to

run as separate and independent organizations with separate and

independent staffs but to have a close coordination and cooperation

tnal naUn't existed and I don't thinr: it has. Again, so that you

..on't misunderstandnd me, I'm not sure that I don't like the American

zar Lour.a-aion better than I do tne ,merican Bar Association and -.,her.

i'm bla:ing fault, I'm not sure which one it is and I never '.ould.

i tried to be a loyal member of the Board of Directors of the

Foundation and tried to make sure that the Association didn't not

understand and not move in on things that ought to be left to them

to decide. but I'm not blaming anybody over here. I suggested to

botnh ert and opencer that they ought to have lunch together for

example once a week. 4ell, they don't. I suggested it to them.

I don't kno', who decided not to do ,hat I suggested. I didn't order

them to, because I doubt that that -;as within n my authority. I doubt

that I could even have ordered them to meet. I could probably ask

Chesterfield Smith 41

them to both come meet with me but both of them are distinguished

gentlemen w;ho know and run their own job and it wasn't my job to

tell them how to be an executive director. But I did think that

both of them needed to work more at coordinating with the other.

i\owv Spencer's done some wonderful things to improve the

coordination and especially on some of the work that we were doing

in grantsimansnip and other things; he's cooperating now with the

~merican -ar association staff and with the Board of Governors 100,

and all in all 1 think that in the two years that I worked with

jpencer tiat there just an unbelievable improvement in some of

the relauionsnips that- existed and I like him a great deal but that

s-uill doesn't mean it doesn't need to be better.

i..: I kno-, as a matter of fact, from my own experience, that there

is some resistance on the part of some of the Foundation research

staff to the BA, ihich is at least partly caused because of the

academic opinion which is: 'dell, you are just doing hack work for

Ine D.;; your research product isn't unbiased and so forth.' which

agLin is not true but there is this feeling.

.* .,ell, there's no attempt or desire on my part to try to influence

the opinions that anybody over there has but I do think that 150 of

the projects they work on, the money and resources, ought to be

directed to projects that the American Bar Association needs pure

research in now, not hack judgments and opinions. If you have, like

Chesterfield Smith 42

a practicing lawyer, if i have a client that comes in here to me

and he wants a q100 worth of legal work and I give him $10,000

,worth and bill him for it, he doesn't want it. '.ell, the American

Bar staff is doing :100 worth of work and the Foundation's staff is

doing 410,000 worth of work on a project, but it's not fair to call

them hack, w.,e just want a little bit there with them. But when you

giantt a great deal in depth, well, the Foundation ought to not be so

tat it's -ot in a position to anticipate and be ready to serve those

hins; they ought not to be locked in \.'ith their other projects so

Ui X1 they ca-n'i.

,xcept tnie ;ors- thing in the ;orld Vwould be if the Board of

governors of tie .3BA had to try to decide what the Board of Directors

of tiie Foundation decides; I tnink it'd be chaos. I understand that

tn.t .as done in thie past. -id I don't want to do that either. I

jus- tini tainat we saw that there needed to be two separate organi-

.zaions instead of one, but that '.e didn't mean that they have to be

completely autonomous and independent and not related and so I want

"o bring tnem back into the middle.

1 thought perhaps we might discuss the functioning of the ABA

and in particular the role of the committees which seems to be from

reading published work and....

.; Let me start off by saying something that might be useful in an

oral histor- that relates to the presidents specifically and then

Chesterfield Smith 43

goes back to the committees. I think that the greatest influence

and power that the president of the American bar Association has is

his right as an individual while he holds that office to formulate and

take positions of his own and to articular them. I want to say that

in a general sort of way when he articulates those positions no matter

how he expresses them or makes a reservation....they've been only

nis own positions and not the Association's, the general public and

even rzst lawyers do not draw any distinction between them because

they of course kno., that he has something at least, they feel that,

.,ell, maybe the association's position is not official yet but if

nat's ..:ht ne it to be there's a good probability that it

,-nd one old past president in a facetious way--but there's a

So truth into it--said that the greatest single over you will

nave as president is not anything in the constitution or by-laws or

in ihe structure, but in tne fact that most of the people who are in

tne over structure of the mrerican Bar Association love it and they

don't ,ant to embarrass it and so therefore if you take any position

or make any statement they won't repudiate you and you can lead and

direct and shape courses because they may disagree with you, but

they won't come in and formally renounce or repudiate you. I mention

that because during my own presidency I frankly had that in mind, I

tried to stay a little ahead of where I thought my troops were, so

to speak, and to take positions that were in the best interest of

t-e .association and society as a whole but which were either nov

Chesterfield Smith 44

acceptable or are becoming acceptable or would in my judgment

shortly become acceptable to a majority of the members of the


I didn't normally, I won't say I didn't in some instances,

but 1 didn't normally try to take what I thought were permanent

minority positions of my own and make them into the Association

policy and I did try to stay ahead of the official House of Dele-

gates or the board of Governors sometimes in taking positions, but

I anticipated that they would ratify them or back them up if the

issues finally were fully explained to them and debated. In most

cases, id didn't call for that action at a later time and I never

.-as myself repudiated in any way even though many people thought

inat I ,,as a controversial president. ,lot once by either the House

of Delegates or the Board of Governors was any action taken that

reversed or reflected on any position that I nov, recall I had taken.

I did of course lose some votes and issues that I spoke on in the

housee of Delegates and in tne board of Governors, but I'm talking

about outside of the deliberations there I'd taken other public


Now to tnat extent one of tne great faults of the American zar

association is the transitory nature of its p-art'icipc. ho alrros

_l\ays are in office only a snort time in committees and sections

and councils and Loard of Governors and any of the officerships and

the fact that tiis at best is almost always only their second priority.

Chesterfield smith 45

,nen you leave the staff level, everybody else has an occupation

or business or calling that is connected iwitn the lay: some of

tnem are judges, some of them lav- professors, some of them respond

to clients and client demands and others vork for lav.-related jobs

in corporations, but there's almost no worker in the ABA v:ho can

always at all times do what he should do in behalf of the profes-

sion and the American Bar Association. There are some of course

v.ho make magnificent efforts and you sometimes wonder how they keep

their clients or hov; they do other things, but generally if they are

lawyers they've got other things to do sometimes.

because of that tne're's a great paucity of issues that ever

really enmesh even a substantial segment of the bar. Perhaps no-
fault is one, because so many country lawyers and big city plaintiff-

xe specialists made money out of personal injury tnat their personal

interest outweigned their judgment on other factors and the others

tnat weren't t economically involved didn't feel as intensely about

it as tnose who ;iere involved. That's an example of one issue that

did have widespread appeal or concern throughout the profession.

But generally that's not so; for example, the average la..:yer

even yet doesn't give a damn about group legal services or open

and closed panels or legal specialization--:hen you have a vote in

whichh they express their preferences in the state bar, you'll see

ten to twenty percent respond on those issues on'their preferences.

-nd so most people are just not really concerned in most of those

Chesterfield Jmita 46

types of issues tnar sometimes cause great debates within the

profession; because of that those who work hard at it have a

great influence.

given, '.e'll say, know.vledgeable people about professional

affairs and -rofessional involvement have limited interest in

all of the issues. And so a committee that's assigned to draft

ethical standards for para-professionals who work in law offices

nasa great deal to do to snape in tne future structure of that

co~ris because nobody else '.ill be that concerned about it. The

-vcra-ce lawyer understands that there are professional values that

arc im:or-cant, -GnaL it ic significant tnat there is a fiduciary

relationship, between la,.yer and client and that v:e've got to prevent

e.ccroacnments as sucn on tnat, but once some lawyers have looked at

it and ade their judgment as to ho,, that can be done and still serve

soci;- in a general sort olf '~a they tend just to accept :'.:at the

co:a ,i ee has done in that particular area.

hey adapt themselves to it, because they realize that there

i- to be one set of rules ultimately and they learn to live by

tn la.. and to interpret tne la,, and to deal with the la:.:; so a

con-:zittee in so many areas will have a work product that is of

tremendous significance to the profession and one that you'd think

would d create a great deal of dialogue and discussion, debate and

controversy withinn the profession, but it sails right through and

everybody seems to accept it without any3 material alteration.

Chesterfield rimith 47

One such example of that, since it's so vital to the profes-

sion, is the Code of Professional Responsibility which affected

many issues within n the profession and certainly, I think, it's fair

to state that they took a middle ground on most of them and they

were not pioneering. -ut even so, there were a lot of new and

revolutionary changes and differences that ,.ere made in there and

if they'd been -created in isolation, they would have perhaps received

a fe otfr tnan acceptance as they got, but the mass of it \ as so

bi,'b -Lat you couldn't just pull one out and there v.ere al\'ays some

issues that may look bigger.

In tne end I think the only real debate when the House of

,elegates adopted that \as due to the i'cCalpin committee's conclu-

,sion to oppose their provisional group legal services, whichh was a

co',_le-ely unobjectionable one done to appease those \.-ho oppose

--'rou legal services and who they thought would kill the whole Code.

.gain' bein fra.k, and I don't mind being recorded or anybody else

looking at it, but I think that those who were charged with the

sjonsorsnip of tne Code of -rofessional Responsibility evaluated

us and concluded tnat ve wouldn'-c kill the whole effort or try to

kill the \;hole effort if our views weren't accepted on one subject

but tnat tne other side was adamant and that they'd kill the whole

Code if they didn't get their vay on group legal services. So that tle only debate.

Chesterfield Smith 43

It went right through and the committee which had worked over

a period of maybe three to four years, and very hard and was a fine

committee, didn't have a product that was necessarily that good but

it '.as just so massive that you just didn't want to zero in and

argue about every little thing in there and it wvas accepted and

therefore it almost was done by those people. 'hey had had public

hearings and they had talked to other people, but even at those

tnere nadn't been a great number that were involved.

In ::y o..- judgment tne posture of the committees to the general

,ju";lic; ana tie outside .corld is not a significant thing and if in

ou- query you were inferring that committees have a great deal to

o ,,ich snifting the public positions ultimately adopted by tne

-.ssocition, 1 think nothing could be truer. ut I don't believe

tnac e-ecrai public pays much attention to committee positions

or thinks ta-t they are AbI positions.

Internally, under any system that does have a lot to do ,ith

shaping tne viewpoints of lawyers, not talking aboui~ those '-ho may

ultimately decide on a position--and I'm not even suggesting that

the A3i establishment decides on a position on the basis of v-hat

lawyers back home thi-n--i do think that through publications,

through efforts, and through communications, committee thinking

does get home to the lawyers and it tends to make a substantial

contribution to tne evolution that is necessary for any changes in

a profession as devoted to the status quo as lawyers are. La.; is a

Chesterfield Smith 49

profession which relies on precedent, which pays service from law

school on to stare decisis, which gets locked in to economic decisions

that are based upon things remaining always like they are, and so

any change has to be evolutionary and committee pronouncements lead

people to be prepared and accept those changes within the profession

later on that come out of committees.

I don't think that any significant restructuring of the profes-

sion or any new advance in jurisprudence or in judicial administration

of lasting benefit to society has come out of a committee without it

going further and being accepted officially by the House of Delegates

or tne Board of Governors. I can't recall a single instance where

the Association didn't eventually catch up with a committee. Com-

mittees advance ideas, they are rejected sometimes, and well, another

committee comes back with it again and it's accepted the second time

and in the meantime people who have read it have been thinking about

it and they may have experimented with it or utilized it in some

state or somewhere like that, but I'm talking about universal

acceptance throughout the nation.

Sections as such in my own judgment are not significant or

important as formulators of either professional or public policy

positions. It may shock some section leaders to hear me say that

because they attach more significance to their importance than I

do. I have believed that in any position and that in any area in

which the Association as such is obligated to take a public position,

Chesterfield Smith 50

and those are numerous, they certainly include all matters dealing

with the legal profession or the administration of justice from

arrest through corrections and return to society and many other

areas, we should not leave any of these areas to a section but we

should have a committee that initiates and studies and makes proposals

in that particular area.

iNow the reason I say that is because the sections are extremely

important to the American Bar Association in one way that they are

a professional outlet for the.members to have an opportunity to work

in the area of the lav with which they are primarily concerned in

their day-to-day life. That may be judicial administration or it

may be general practice, but it's much more likely to be something

like corporation, banking or business law or antitrust or tax or

labor. Whatever it is there's a section that has activities going

on that cover almost all of the multiple ways that lawyers work in

the law and they have all kinds of programs, primarily educational

and special interest.

I think that there is a proper place for a man to exercise his

special interests because they voluntarily join a section, they pay

extra dues to get in to the section and if they for example are in

labor and they represent management exclusively there, everybody

knows they do, they should say they do. And if they honestly believe

that labor laws are wrong and are favorable to unions and want to

change them, they should try to get them started up and worked up

Chesterfield Smith 51

and go through the steps so that ultimately all of the lawyers in

America through the House of Delegates look at it and take a posi-

tion on it.

So I think sections are special interest groups. I can almost

say that those engaged in corporation, banking and business law are

very special financial type lawyers who are special interests and

that there are no poor people's lawyers there; there are no people

in there protecting consumers or anything else because that's not

/.nat that group's for. That group is to study banking laws and

corporation laws and there are not any what I'll call poor people's

banks or poor people's insurance companies. So, when a proposal

comes out of that it may be a very good proposal or it may be a

very bad proposal, but we in the Association know that it's a special

interest proposal and like all other special interest proposals you

should suspect their special interest motive, but it still doesn't

mean it's wrong--it might be very good.

They need an outlet. Committees are not big enough. In all

the committees I think the Association has about 800 appointees out

of 190,000 members. So if it wasn't for sections, we couldn't

probably hold the interest of our members who want to work, and

not all members want to work. Some members just want to belong.


Chesterfield Smith 52


6ome feel they have an obligation to belong because they think

the profession's doing good and the Association's speaking well

for them and therefore as part of it they should contribute at

least their dues. Others feel like it's demanded for their

prestige. There maybe even some who think that it may affect

their law practice and that clients may or may not hire them if

the don't belong. I doubt that that's true anywhere, but they

may think of all kinds of reasons.

But at least a very large number of them want to do something

to improve at least their special interest in the law, their par-

ticular interest is a better word than special interest. I don't

mean it's necessarily a selfish way. They may be interested in

legal aid for the poor; nothing selfish about that thing but it's

a special interest of theirs or a particular interest and sections

give them a place to work. They want to do something, so sections

are perhaps the life blood of the Association in that members are

a life blood of an Association and you would not be able to keep

and attract that many members unless you had a home or an outlet

for them to work and participate.

So we come right back down to answering your question. I

think that the most important policy shapers in the Association

has to be, and you can say that all policies are made by the House

Chesterfield Smith 53

of Delegates, has to be the Board of Governors who are elected

to run the day-by-day affairs of the Association and who shape

it that way, but close behind them are usually four or five com-

mittees every year who are particularly active and are working.

There's another 110 committees that don't do very much. All kinds

of things during the year and they're not very significant. And

then least significant even though they think they are very,very

significant, I think, are sections who very rarely come up with

any innovative or startling new proposals that relate to the good

of society or the good of the legal profession.

1il1 I've seen some evidence from the past that special interests

were represented on committees set up in these cases to deal with

some question of substantive law. Now, I have seen correspondence

here someone writes to the president and says 'Well, I'm repre-

senting this particular type of industry and I would very much

appreciate if you could see appointing me on a committee that deals

witn it.'

6S The Association policies on that are good enough, in my judg-

ment. Like always, policies are not implemented as well as they

sometimes could be--I certainly did not implement them as well as

I could and I in retrospect learned of some mistakes I'd made. But

in general we call for all committees to be broadly representative

of all of the various interests that exist within the law.

Ghesterfield Smith 54

For example, if we were to appoint a committee to study

no-fault, which is a controversial special interest thing, we

certainly do not want a committee that's made up solely and

exclusively of lawyers who practice personal injury law; and

therefore have the most interest in the subject. We would want

to get on that committee some lawyers who don't give a damn about

it; we'd want to get also some academicians or some people who want

to look at it from a purely theoretical standpoint and come to a

conclusion; we would want to the extent that we humanly could to

get people who might have the interest of accident victims at heart;

ve'd ,4ant to have somebody on there representing the viev.s of the

insurance companies and if possible we'd like to have it so balanced

that the outcome was not determined in advance. Sometimes it's very

difficult to know how you do that and I myself didn't ever worry

about that because I felt that the House of Delegates, which has

some predictable outcomes but is still widely representative of the

legal profession as a whole as I view it would decide that.

Now we do have a full disclosure rule in that anybody who has

a direct or a remote financial interest in the outcome of anything

is required to disclose that, including any interest any client he

is representing has in the outcome of things. Now most patent lawyers,

for example, represent inventors or large corporate utilizers of

inventions and it's almost impossible for them to not have a pecuniary

interest of some kind in almost any legislation. If they change it

in any way, I mean if they change it one way they got a client, if

Chesterfield Smith 55

it changes another -way they got a client right there that they're

representing. But our rules would permit them to vote and take a

position so long as they disclosed all of their conflicts and all

of their representation so that anybody can evaluate their state-

ments, their advocacy, their vote anyway they want to on the basis

of what they've disclosed.

I think that sections properly should represent special inter-

ests because they volunteer and join in and I don't have any problems

witn them except that any of their council members at the end are

Cshould?D also required to make full disclosure and any of their

advocates on the floor who make statements are Cshould?D also re-

quired to make full disclosure.

So, in the end, I recognize that some Association committees

nave preconceived notions and that somebody might think that they

are involved with a special interest. Such as, if a lawyer who

feels like he's got all the business in town cornered and he's against

lawyer advertising for example, he's got a special interest and he

won't reveal that as such, he'll just say 'I think it's unprofes-

sional to advertise.' ~jell in truth, another guy will say: 'Well,

you had all the rich lawyers on the committee, and they don't want

to advertise, and none of the poor lawyers.' well those kinds of

special interests are not always represented and sometimes the com-

mittees are stacked in ways like that, but our policy calls for the

appointing authority recognizing his fallibility to try to bring in

Chesterfield Smith 56

the broadest possible diversity of interest and representation

on all committees. I'm convinced that most presidents have worked

very hard at it, but none of them have yet achieved the maximum.

iis Now going on from this to the influence of the ABA on public

opinion in specific instances, perhaps. This is a very unclear

area where I've seen statements made to the effect that maybe it

has immense power or it has none, in Washington let's say, the

national scene, both with respect to technical legal matters and

issues like court packing by FDR, Watergate issues or nov the legal

services matter.

s: iell I don't accept that analysis. I obviously don't have

anything except a feeling, but I felt that actions that I took as

an individual which in a very short period were backed up by the

Board of Governors in connection with the Saturday Night Massacre

had a great deal to do with shaping public opinion on the issue.

There were other factors, other variables, other influences, but

tnat wvas a major one and a major one in the President backing down

and agreeing to comply with Judge Sirica's order and of course that

led ultimately to the impeachment since it involved the tapes and

the use of tapes.

I also think that on far less controversial issues like, we'll

say, legal services for the poor that didn't really capture the public

imagination as such like uatergate where you don't know w-hat causes

Chesterfield Smith 57

what, that the bar has had a tremendous impact on shaping of that

whole program and its ultimate adoption by the Congress over the

opposition of many very powerful business interests, and especially

agribusiness interests, who were concerned about poor people having

legal service programs. Many other business and corporate interests

were opposed to it and I think the legal profession had a great deal

to do with it.

I think that the federal judiciary program demonstrates in a

very dramatic way that's unparalleled in any other field of endeavour

in the United States the influence of an organization in high federal

appointments. lost senators consider that the single most important

patronage that they have. To have some outside organization at a

national level influencing them, that demonstrates to me a remarkable

influence. The fact tnat there have been only since President

Lisenanover came in in 1952 two or three judges that have actually

sat and judged cases whom the ABA did not find qualified is almost

unbelievable when you recognize that the Constitution gives the

power to the President, with the power in the Senate only to ratify.

There is a judgeship pending now, in the

i~: Second Circuit....

S t Second Circuit, which President Ford has resubmitted--it was

originally submitted by President 1ixon on his last day in office--

Chesterfield Smith 58

which the ABA is opposing and in which we're fearful of the outcome.

It's my understanding that there hasn't been confirmed yet a single

federal judge who the ABA committee did not find qualified since

Senator Kennedy recommended President Johnson in the appointment

of Judge Morrissey, a municipal judge in Boston. There was a big

fight about that. The ABA opposed it and Senator Kennedy backed down

and asked President Johnson to pull it back and he did. So there

wasn't been one and iEixon never submitted a single one until he

submitted Governor Meskill. I don't know what the outcome will be,

but it doesn't matter.

The record is remarkable in and of itself and the ABA committee

certainly should not have a veto right; if they are wrong, if special

interests were to capture them or anything else, the President and

tne Senate ought to go their ovwn way. One of the things that was

a. issue here is that Governor LIeskill has never practiced law.

Yet he graduated from a law school and he's been a mayor of a city,

new's been a fine congressman and a fine governor, and if the people

decide that the ABA's committee is wrong and that you get more

experience to be a judge out of being a mayor and a congressman and

a governor than you do out of being a lawyer or being an advocate or

being a judge, well that's all right. I don't see anything wrong

with that. The ABA ought to assert their positions, but the point

is people have not yet made a decision in the case and they follow

the ABA guidelines and influences in a matter of critical, national


Chesterfield Smith 59

Now to the same extent they don't always accept the ABA's

position. Part of it is fallibility of our own procedures in

regard to the Supreme Court nominations in which we had so much

trouble. The system that we had was very bad and the committee

hadn't any real experience in it; they used the same standards

and guidelines for determining qualification of a man for sitting

as a federal judge on a lower or a circuit court, tried to apply

them to the Supreme Court, and they weren't the same. The public

demands, not that they question the ABA's judgment, but they demanded

that we apply higher standards to that particular court than we had

been applying to other people, and the people we had found qualified

in other courts, we had to look at and see if they were unique people.

They wanted better people than that on the United States Supreme Court.

So ,-e've changed our procedures and I don't think we'll have any

trouble. They did change their procedures ultimately and the Presi-

dent got mad later when they changed their procedures. He suggested

some names that had been worked out--he was scared of leaks so they

told him to submit more names than he actually had people in mind

anda hey leaked too. That got out. But, we think through the Presi-

dent's Office.

He didn't like the results when they applied the higher stand-

ards and so eventually, as vie all know, the ABA committee really did

not in any way investigate or react in any meaningful way to the

nominations of Justice Powell or Rehnquist. They did react and some-

body will take issue with that. I know they voted, but they didn't

Chesterfield Smith 60

have a chance to make an investigation or do anything except

evaluate \nat they already knew about people. Lewis Powell

,was, of course, well known but still if you're considering him

for Justice of the Supreme Court you still need to go more than

just know him.

Even though I'm no longer president of the American Bar

Association, it's been more than six months now I think, I still

get a lot of mail from people \w'ho want the power and influence of

tne American Bar Association used to solve every conceivable kind

of problem that they have. I think that if anything, the general

public probably overevaluates the importance and influence of the

American Bar Association instead of underevaluating it and that's

true also of congressmen and senators. I spent a great deal of

time in iashington and before the Congress, or congressional com-

mittees at least, had opportunities to meet congressmen and talk

to them and I was tremendously impressed with both their knowledge

and concern about what the ABAi was doing on things. When the ABA

was taking a position or looking like they were going to take a

position that was contrary to what they thought was a proper

position, they were really upset about it. Not because somebody

was contrary to them, as I saw it, but because they thought that

such an organization who was right so often and right so many times

should not be wrong on that particular issue and they'd expressed


Chesterfield Smith 61

Ko-fault's one of those examples even though of course that

was a divided issue with Congress as well but a majority of both

houses appeared to be sympathetic to, well, certainly were sympa-

thetic to no-fault; the issue was whether federal no-fault or state

no-fault. I would talk to significant leaders in the Congress and

I would be told by them that the American Bar Association's influence

on the Congress was substantial and they were hopeful that we could

do this or that and take a position on or before such and such a

date since it would have an impact on the outcome.

I think that the American Bar Association has an overwhelming

impact on state and local bar associations. Not a single state and

local bar association of America would admit that. I would think

that its influence on state bar associations is far more significant

in real ways than it would be if those were affiliates of the ABA or

separate because we now speak as a voice that includes everybody and

they want to get in line with the swing. I'm sure that if you could

mandate that they do something, that you might achieve some things


But I was talking about influence as distinguished from direction,

and our influence now is tremendous with them because most things that

we mandate as a national position of the bar and a national structure--

ethical standards, judicial standards, standards of criminal justice--

most of the state bars by our influence really didn't get out and try

to work the Senate or the responsible authorities. I don't think

Chesterfield Smith 62

tiat's so, for example, in the medical profession or in any other

national output. And while I wish, you know, that, say, bar disci-

pline and other things that are hard to sell to lawyers because

they fear it for many reasons, and they hate to bear the cost of

it for another reason, if we could mandate the structures there we

could achieve a great deal. But we can't mandate them and I can't

imagine any national organization which by persuasion and influence

would ever get closer to an unlimited number of affiliates.

There are three or four bar associations that sometimes like

to take off on you there, pass a resolution or something. After

the Saturday i'ight Miassacre, for example, the Louisiana Bar passed

a resolution saying that the American Bar Association had no business

i: that and tat I had no business in it and that neither one of us

.,as speaking for them or something like that.

.~nd only to show you the influence on the thing. That was I

uess in I;ovember and somewhere like April they had their annual

meeting and their president asked me down there. I'm not sure

whether he asked me before or after that because Louisiana happens

to be one of about five states that always asks the ABA president

and Bert Early. But when we got down there I do know this, I do know

tnat their president got up and fully and fairly discussed the facts

of that issue and said what his position was, that their Louisiana

nHose of Delegates had passed that resolution and that he believed

taat tney were right in passing it and he believed it was a correct

state ment.

Chesterfield Smith 63

But he said now that I've said that, I want to tell you I

want to introduce the greatest president the American Bar Associ-

ation has had and I think the American Bar Association is the greatest

professional organization in the world and that they have the most

wonderful program. They did one thing that I disagree with but

that its the best organization that I know and can find. And I

spoke and when I got through I discussed the issue, told what I

thought; obviously they were mixed but I got a standing ovation

that was not exceeded any time during the year.

lot of people like me were upset when the Louisiana bar

condemned it. They thought that made us look bad. VJell, that's

not so. The Louisiana Bar is influenced in every way. In that

case, it vas an emotional issue, a national issue. They were

entitled to their own judgment and even possibly were right.

The fact that almost everybody else agreed the other way doesn't

mean that they were right either, but they couldn't have passed

that resolution if they hadn't felt the ABA had significantly

taken a position. In the same way the same thing happened in



i-OTZ Due to mechanical failure the remainder of the recording

on this tape was lost. The interview continues in the midst of a

question concerning iatergate and the Saturday Night Massacre. The

Chesterfield Smith 64

mechanical failure was discovered immediately after the inter-

view session and the question of the ABA's role in the datergate

affair was taken up again during the next interview session.

(See Tape A-B, p. 78 of this transcript.)


;: ...bee him on my own and talk to him about the federal judiciary

committee. I had also previously talked to the former attorney

general ~-eindienst about the judiciary committee and who ought

to be on it and what they could do and I talked to ir. Ruckelshaus

and I liked everything they did, frankly, and they really snowed

me. I thought they were going to be a great team over there at

tne Department of Justice and so after I'd been in office about

50 days, 30 of which I'd been in Africa and Europe, I came back

and I was trying to be nonpartisan even though in all honesty after

certain disclosures made before the Ervin committee, the main one

of which may not have convinced anybody else, but when Lir. Mitchell

and iir. i~ixon said that they didn't talk about the thing and neither

one asked the other one what happened down there and well, applying

my own common experience from that day on I thought that there was

a massive lie going on. >o I had become convinced I didn't know

all the story but I was disenchanted enough though I'd voted for

\ixon and was trying to work with him but I tried to be nonpartisan

even though I thought that he was guilty of some bad things.

Chesterfield Smith 65

I didn't know exactly what, until this Saturday Night

ivMassacre. i.hen that happened I think the Administration Com-

mittee of the American Bar Association, which was primarily the

officers as it was then constituted--it's been changed a little now--

were meeting on Friday and we were all in Chicago. I stayed there

because I had an apartment there. ,e went to dinner and we were

all talking about what happened, that was on a Friday and we were

all kind of upset about the fact that Nixon had stated categorically

and positively that he just wasn't going to comply with Judge Sirica's

order, that he had worked up this compromise with Senators Ervin and

Baker whereby -enator Stennis would read the tapes and verify them

and that all that they were going to get, and that he instructed

Cox not to do anything about it. That bothered us and v\e were talking

about how he can't defy a court order and get away with it.

They all went home and I stayed there in Chicago and went out

to tne Bar Center to work. I remember watching the Archibald Cox

interview that next day in which he stated that he would not comply

with the President's order, that his conscience wouldn't let him,

and the President fired him. That may not be exactly the sequence,

I'm not trying to even give my best detailed recollection of how it

all happened. Richardson and Cox resigned and we heard on the tele-

vision about the FBI going down and taking over the Special Prose-

cutor's office.

iiy son called me up, he vvas about 20 and he said: 'Daddy,

Chesterfield Smith 66

there's people in rvashington who are crazy. I'm scared, there's

going to be some kind of revolution here if they start taking over

courts and government by the FBI,by force.' I told him I did not

think anything like that was going to happen. I stayed home that

night and kept thinking as it goes through my mind.

The next day I went out with Bill McBride, who had been a lavw

student and who was a special assistant of mine. ve went out to a

Cnicago Bears-Boston Patriots football game. It was a sorry football

game and I kept thinking of that thing. I started scribbling on the

back of a program some of the things that I might want to say about

it. -e got out of the football game and we called from a booth

Bert Early and told him I wanted to make a statement on it as

president and that I'd like him to meet me at the ABA Headquarters

and to get Louis Fotter, who worked for me, and Lowell Beck and

Chris ,hittle and whoever else he thought may have been out there.

,ve got a cab and went and got my wife from the football game and

went out to the Bar Center.

I don't know who all was there when we got there, but that

must nave been about 5:00 and at my instructions they all got on

telephones and they started calling my close friends and advisors

and telling them that we were thinking of issuing a statement and

what did they think it ought to be and do. We called members of

the officers, we called Fellers, the president-elect, and Jim Groves,

the Chairman of the House, and I talked to them both myself and I

Chesterfield Smith 67

talked to Kenneth Burns, the secretary, four or five times. He

was a Republican and a close intimate to a political advisor to

Donald Rumsfeld. I put this down on history; I guess I ruined

Kenneth politically there but he felt outraged by the whole thing

andthought that I should do even more than I was talking about

doing and so he encouraged me to and his wife who is a fervent

Republican did also.

I talked to Ed vialsh, who is now the president-elect, who was

a member of the Board of Governors at that time and had been a

supporter of iixon's and he been his appointee to the Paris peace

talks and who had been Deputy Attorney General under Eisenhower,

because I was trying to make sure I didn't get heartless. I talked

also to president Mveserve, past-president reserve then who was still

a memoer of my Board of Governors, and I had Bert and Lowell and all

calling all tne other members of the Board of Governors telling them

that I'd decided what I was going to do, that it only going to

be me but that I wanted any suggestions they might have of action,

one way or the other, that I mignt take.

Ed .jalsh told me he was going to, and I told him I didn't want

to but that he could if he wanted to. He started calling selected

past presidents of the Association that he had confidence in and I

know particularly that he talked to Bill Gossett, Bernard Segal,

,ihit Seymour, Orison garden and Earl Morris, I think. They called

back and Ed had written out some statements in which he deplored

Chesterfield Smith 68

President Nixon's position. Bill Gossett, after ualsh had called

him, wrote out some statements and he called and talked to Bert

Early and gave Bert Early some of the statements. I rejected

.alsh's statement because I thought that it was too cautious and

not to the point and I didn't utilize any of it. I took Gossett's

and incorporated some portions of it in the statement that I'd been

roughening out.

I started getting calls from national figures who heard, like

people here, that we were involved in making calls. I had calls

from Ralph i,ader, I had calls from Senators Tunney and Hart and

iennedy who were opposition. I had a call from the administrative

assistant to Senator iruska. I talked to those other people but did

not talk to Elliot Richardson who had just resigned the day before

this--it was on Sunday--and he called me and I was on another phone

and I never did get him back.

.je were talking, we were formulating a position, and finally

about nine o'clock I took frankly the most positive and strongest

position of any that we had been looking at. we had roughed out a

bunch of them and said, that's it. Then, my wife and I went home,

the pnone was ringing, the television people were downstairs, upstairs

they were at the apartment. They had gotten word that v7e were involved

in it.

Chesterfield Smith 69

The ABA staff did fine work; after they got the statement they

reproduced it, and it was on the front page on either Monday or

Tuesday of the Los Angeles Times,the Philadelphia Inquirer, the

iashington Post and the New York Times, and many people think those

are the four most influential papers in America. At least it was on

the op-ed page, I think, of the New York Times, but it was on the

front page of the Post and the Inquirer and the Los Angeles Times,

not too long a statement there, but about the size of that plaque.

I'd like to go into the rest of the week in a minute but I

come back by stating that many iJashington newspaper people told me

tnat that had a monumental impact upon the President's decision and

the Congress' backbone. At least I heard General Alexander Haig,

then the Chief-of-staff, on Meet the Press on the following Sunday

asked about it. He said, well the President saw: it and he said it

was at the top of his reading material on Tuesday morning, and the

Christian Science Monitor had a little newspaper article in which

they said that it was the first time that an article had been placed

on top of the pack encircled in red. I don't know where the reporter

got it but I saw the same because those were the kinds of things I'd

be interested in because I was involved.

I started on my speaking commitments for the week, which hap-

pened to be a week in which there were a lot of them, and television

just was all over everywhere because of the Saturday Night Massacre.

That was on Sunday night. I went to Boston on Monday to speak to a

Chesterfield Smith 70

judges meeting and national television was there all over, only

interested in watergate, out at Harvard Law School where I was

speaking to the judges. On Tuesday when this hit all the press

everyw',here--it had been wire stories before--but the statement

with my name signed under it was running on the op-ed page, that's

,-,hen it really hit it.

I v.ent out to San Diego and the press was everywhere. I had

an interview with the editorial board of Copley Press that day, had

it already scheduled, and I talked to the National Legal Aid and

Defender Association, and they are a different breed of lawyers in

tiiaL tney were mostly liberal types, though not exclusively. They

mostly are interested in legal services for the poor, though not

exclusively. There were defenders and public officials and some

Republicans and Democrats, but I had written a speech in which I'd

defended my position and told why I took it and what I thought the

President had to do and ought to do all the way out there. That's

tne most unique audience I ever addressed in that when I got through

I could look out and see in the audience numerous people with tears

running down their cheeks and they stood up crying; that was an

emotional thing because they were friendly and sympathetic in general

with -what I'd done and another audience may have been booing, you

know, somewhere else.

And then I got back and there was television at the airport,

I ..,as on the Today Show twice, three times that week, that's the

Chesterfield Smith 71

morning show, you know. There was television at the airport; when

I got home, an NBC crew was at the apartment waiting, Barbara ,alters

was there. It was that day that the President announced that he was

going to give the tapes, that he was going to comply with Judge

Sirica's order, that he wasn't going through with the Stennis

proposal and that he was going to appoint a new special prosecutor.

I had also decided on Sunday night that I'd make that statement

alone but that I would d immediately call the Board of Governors together

for consideration and ask, because only the Board could do it, that

tne House of Delegates be convened in emergency session. That requires

30 days notice. (je're trying to change that this year.) I thought

tnat it ,;as a position of national importance at the time and the

riouse should view it.

And so on monday I appointed a committee of Robert Ieserve as

chairman and Ed Jalsh of reew York and Ed Campbell of Jashington as

a committee and asked them to meet. We'd called a meeting of the

Board of Governors for Saturday in Chicago. This was on a Monday.

I asked them to meet and try to work up an agenda and program and

proposals that was independent of me; I didn't want it just to be

me and they didn't have to consult with me but I wanted somebody--

not coming to the meeting without having a program to do and so

eventually we met.

Chesterfield Smith 72

lore than that--I don't even remember all of it--but I had

a general meeting of all my committee, that's the one I was talking

about that's when I was really going to get my program kicked off.

They were all meeting out at O'Hare at the Marriott on Friday,

Saturday and Sunday, and because of various involvements with

tnis thing I didn't get out there hardly at all. I went out there

and I got a tumultous reception, I thought it was unbelievable, from

all those lawyers because I expected it to be more controversial than

it turned out to be. I had to leave and we went to the Board of Gov-


The Board of Governors debated it maybe four or five hours. I

had a quorum plus one lawyer, that was all. As an emergency meeting

people didn't come: some didn't come because they didn't believe in

it and didn't \,ant to get involved in it, at least one Republican

i knov ; o-chers couldn't get there. Mieserve didn't even get there.

Ale was my chairman of the committee studying it but he had commit-

ments ne couldn't get out of. .e had a quorum plus one.

*,e debated it about three hours and I'll say a good solid half

thought that I had done everything just right. Another large block

thought that the position I had taken was a correct position but

tney thought that my language had been too strident or excited or

dramatic and two, who would have destroyed the quorum, thought that

I was ',rong and shouldn't have said anything and that the ABA should

not have taken a position, that it was a political issue, and Nixon's

Chesterfield Smith 73

a great man, and he's catching hell from all quarters and v*e

ought to be protecting him instead of attacking him. And one

of those fellows, one of those two, was Ben Dutton of Indianapolis

who is very fond of me personally, though he is a conservative.

He considers me some kind of, somewhere between a liberal nut

and a moderate nut. He was very fond of me and he wouldn't have

repudiated me, and I never really was, but he said he just had to

go home and he left. We started at eleven that morning and he left

about three and vwe had exactly a quorum.

te tried all kinds of various things and nothing vwas done so

tney finally recited the statement that I'd made and they recited

it as being a correct statement as of the time it was made, in that

now :iixon had complied and there was a new special prosecutor to be

appointed and we had endorsed legislation creating a nex; special


I'd brought in to speak on the issue of whether a new special

prosecutor could be created by the Congress over the Presidents

opposition, I'd brought in Judge Jack Day, who was chairman of the

3BA Section on Criminal Justice, and who's an appellate, state

appellate justice from Cleveland, Ohio; and Justice Bill Erickson

.;ho 1,as chairman of the ABA Special Committee on the Administration

of Criminal Justice who was a member of the Colorado Supreme Court

and who the immediate past-chairman of the Section on Criminal

Justice. The two of them were well familiar with the original call

of that section for the appointment of a special prosecutor.

Chesterfield Smith 74

I'd also asked through Lowell Beck of the ABA staff, I.litchell

Rogovin of the Arnold and Porter firm who I did not know--I did

know of the liberal inclinations and tendencies of that firm--I

asked them to prepare and sign as a firm as being their legal

opinion a document showing the right of a President to comply or

not comply with court orders, executive privilege, and on these tapes,

and the right of the Congress to enact a law creating a special pros-

ecutor. I asked tnem because I had been advised that they were

working on that for some other people and I said would they do it.

I told, of course, the Board of Governors that they were a liberal

law firm and I knew that and that they were entitled to anybody that

felt strongly about it, but that I'd asked them would they put it on

their stationery and sign it for the firm and they did and they didn't

charge me for it. I liked it and I thought it was a highly profes-

sional job and I couldn't see any partisanship in it, but maybe I

,as partisan by then too, and I don't try to say I wasn't; I don't

know .

je debated and they finally ratified my statement and endorsed

legislation for a special prosecutor and Ben Dutton had gone and we

had an exact quorum. The rest of the Board, everybody voted with me

except Joyce Cox who is from Houston, Texas, a fine man who is a

dyed-in-the-wool conservative and Texas-type, and he voted, he said

I had no business doing it, and he voted the other way and so it

wasn't an overwhelming vote because a lot of people weren't there

but the majority of those that weren't there would have voted with

Chesterfield Smith 75

me and the majority that were there, the overwhelming majority of

those who were there, did. I think out of the 22 man board that

we would have said we had 4 if they'd voted what they believed and

Dutton may not have voted that way even though he felt that way

because he liked me so much. If he said it, his basic position

would have been 'Well, I never would have done it but it's done

and I'm not going to condemn anybody.'

te then started writing a position paper and I went down on

monday \which was eight days later, or nine days, maybe it v;as a

Tuesday, to Jashington. I was before the House Judiciary Committee

testifying \:hen I was interrupted by the chairman--I'd already had

advance notice frankly--that the President had just announced the

appointment of a new special prosecutor, Leon Jaworski. I was taking

a position, a written position, and I responded to questions for a

long time, that the President should not be permitted to appoint

another special prosecutor, that the Congress should establish the

job by legislation, and that it should be appointed by the judges.

I remember them asking me about iir. Jaworski and I said I oppose

him being appointed. He is my dear, dear friend. I think he is as

honorable and fine a man and lawyer as I know and if the court would

appoint him I would be delighted with it and feel that they could not

make a better choice but I think it's wrong for the President or

anybody else .-ho is being investigated to appoint him and if

,;r. Jaworski, who I kno'- to be an honorable man, but who is not

Chesterfield Smith 76

kno.n so well to hundreds of others, decides on the basis of

available evidence and professional judgment that he won't

prosecute Richard Nixon, I said there will be millions of people

in tnis country that will question his motives and say: 'Well, the

President's man just did what the President Vanted to,' and that

the appearance of justice demanded that somebody else be appointed.

And tnat was the end of that because the special prosecutor was

appointed and of course Leon did a magnificent job afterwards and

I anticipated that he would and I said at the time that he would

but that it w,,as the wrong thing to do.

.o.. much impact we had I don't know. At the same time that

these things were going on there were massive efforts by the American

Civil Liberties Union, there were massive efforts by Democratic poli-

ticians, there were massive efforts by Ralph Nader and his group and

I .Till say that in many of them their efforts and the money and effort

they expended in it may have exceeded ours. But because the American

Lar Association was whatever it was, that is, at least an organization

;ith some type of conservative image, because they knev; that we were

at least as nonpartisan as you can be when lawyers are your members--

most lawyers have partisan positions--but that our membership was so

diverse that we were not on one side and because they knew that in

general most lawyers had been overwhelmingly in support of Nixon and

I'd publicly stated that I'd voted for him and all, I think that it

had a great impact.

Chesterfield Smith 77

I haven't seen a statement like that from any other organi-

zation president printed on the front page of those newspapers

and I think that that editorial judgment on their part showed

that they thought that it might have an impact on Nixon and the

country. And then as I said, I forget exactly what General Haig

said when they asked him on this Mieet the Press thing after it was

all over and they'd appointed Jaworski, was the President, when he

decided to comply with Judge Sirica, aware of the statement of

Chesterfield Smith, president of the American Bar Association?

General riaig said something like he was aware of it, it w'as in his

daily press briefing that he got. They said: 'Well, what did the

President say about it?' lie said: 'I didn't hear him say anything.'

They said: 'What do you think of it?' He said: 'Well, Mr. Smith

sure does say a lot of things,' or something about like that.

I heard it. I don't remember exactly what it was and that was

all there was, but it was enough: at least I know that they had seen

it at the White House and so I don't want to do more than to say that

it ..-as some water falling on a stone. I don't know whether it was a

bucketfull or a drop. It had some impact I know and I'm sure and

I've always felt that it probably had a very substantial impact and

I've always thought that it was the best thing I did and I still

think so. I know a lot of other people that think that and I find

very few; .;ho disagree with it any more. I imagine there are a lot,

but they don't tell me any more and I don't run into them. So that's

the Saturday Night massacre.

Chesterfield Smith 78

Obviously there are hundreds of telephone calls and involve-

ments in there and all that week people were trying to shape my

thoughts and positions. I think the fact that it was courts and

was a legal issue made the influence of the American Bar Association

more predominant than it would have been in some other context but

that we had a great deal to do with changing the ultimate direction

of the country there. I have a feeling that it we hadn't spoken out

that it night not have resulted in the way it did and at least some

prosecutor not of the caliber of Lean Jaworski may have been the

?residentIs choice. But he had to get somebody to quiet us do'.:n so

to speak a-nd he got a man that v-e all knew to be one of deep moral

integrity. So that's it.

,; OF 'Ir %- "

ZGI .:::CG 0 TA-P1 A-B

i; .Ir. Smith, you did mention that you and the ABA did have a sub-

stantial effect on the jatergate issues. would d you be able to elabor-

at. o:_ this a bit?

St .;ell, it was always my judgment that the position taken by the

American Bar Association, by the Board of Governors of the American

Bar Association and me in my individual capacity did, at least in a

minimal ..ay and perhaps in a major way, play a role in the w;ay that

Chesterfield Smith 79

the so-called Saturday Night massacre came out. To start with,

I had been myself a lukewarm supporter of President Nixon to the

extent that I had voted for him. I had not been an active worker

in his behalf because I voted for him on the basis that I thought

that he was the best of the choices that I could make in the poll

or booth, but I hadn't been involved with him in any way.

I had felt that the American Bar Association should be involved

in anything insofar as it might affect the court system and the admin-

istration of justice; to put it back in perspective, I think that view

was shared fully by my predecessor, Robert reserve, who took office

in August of 1972 shortly after the '1atergate burglaries and as

developments were beginning to unfurl and wvho stayed in office until

august of 1973 during the interim in which the Presidential election held, tne disclosures began to be made by various people to the

United States Attorney's Office and the grand jury in WJashington and

to the Ervin committee, including the disclosures of John Dean and

others, and on through the appointment of Archibald Cox as special

prosecutor and up to the filing of Judge Sirica's ruling ordering

the President to turn over the tapes and the appeal therefrom.

President i'eserve had spoken out frankly and vigorously and

candidly and openly in a way that I thought was right and proper

about problems connected with lawyer discipline and with the profes-

sional dereliction of those lawyers who were revealed by disclosures

to have participated in illegal or unprofessional activities. We

Chesterfield Smith 80

had also been concerned, and he and I together jointly at the

spring meeting of the Board of Governors of the American Bar

Association in May of 1973 had requested the Board of Governors

to authorize the appointment of a special committee to study federal

law enforcement agencies, which were to look at all federal law

enforcement agencies but particularly I think at the Department

of Justice and perhaps the Internal Revenue Service in connection

witn the .iatergate disclosures, to see if there were ways and means

'.hereby those agencies could be restructured so that they became

depoliticized or nonpartisan and were not used for partisan pol-

itical purposes. That committee was authorized by the Board of

Governors and president iLeserve spoke out on that issue, as did

I as president-elect, in speeches that we made around the country.

The next real issue that ,-e were to cover was that president

i.-serve and I both endorsed the concept individually, it 'wasn't

presented to the House of Delegates as such, of an independent

special prosecutor not connected in any way with the present pros-

ecuting officials; we did that as individuals as I stated, and

Llliot Richardson, an attorney general who I had become acquainted

ithn in preparation for my year as president, consulted with

ir. reservee who \was like 1:r. Richardson from Boston and they were

friends, about w\ho the special prosecutor could be. It was my

understanding that iu. ivleserve did make some recommendations,

multiple reco-mmendations, for possible consideration for the

special prosecutor to i.Ir. Richardson and tnat while he did not

suggest him that he did evaluate ir. Cox for ir. Richardson.

Chesterfield Smith 81

I myself did not participate in any way in those discussions

and I mention it only to show the way the iABA was participating

and cooperating ..ita people who were trying to uncover the truth

and do jus-ice. Jnile president, as a practice that v.'as similar

to that I'd previously followed with attorney general Kleindienst

and deputy attorney general Joe Sneed, I took steps to become

acquainted with and to discuss matters of mutual interest and

concern with Llliot hichardson, the attorney general, and William

Ruckelshaus, the deputy attorney general. I was very fond of both

of them. I had a close cooperative relationship with them and I convinced that tiley were outstanding upright public servants

who -ere trying to do right.

I mention all of that because that's a predicate to some of

the emotional reaction that I felt when they, on the so-called

Saturdayy 'ight iiassacre, felt an obligation to resign rather than

to no-c comply witn Judge Sirica's order or to force Mr. Cox not to.

I also would like to say that when '1r. Cox was appointed as special

prosecutor, I knew him by reputation, but not personally. I had not

been consulted with by anybody and did not know he was to be appointed.

The press asked me about him at the time and I expressed some reser-

vations about him, by stating that while he was a distinguished man

and a distinguished law professor in the labor relations field that

I was concerned about two matters: one, the matter of his lack of

trial experience and the second, the fact that he had been part of

President Kennedy's administration and that I thought that many

Chesterfield Smith 82

people in the country might think that this was a political action

or political vendetta when that certainly was not the desire of the

American Bar Association.

I did not at any time talk with lr. Cox and I didn't know

anything about, personally about, what he was doing in his investi-

gation other than what was disclosed to me in the media and in

talking and that was the status of the matter when the Saturday

light 7Lassacre occurred. I might add further, one additional fact,

because I think that my own mental state at that time is significant

and important, that even though I had voted for President :ixon twice,

I nad become somewhat convinced during the Ervin committee investi-

ga-ion ` hat he in a material way involved in the aftermath of

i;he ..atergate burglary--the so-called--no.w we call it the cover-up--

anId liat opinion perhaps ;as fixed by a simple thing that certainly

is not conclusive, and a fact that would not maybe influence the

judgment of anybody else, but when it was so categorically stated

that he had never discussed the matter with former Attorney General

i.itchell who had allegedly been his close friend and advisor, that

just didn't seem logical or make sense to me. I knew the relation-

ship I had with my friends and my supporters and if it came out

that one of them had any knowledge or involvement with something

I'd ask them all about it. If it came out that people under their

control or employ did, I would expect that tney would tell me all

that tne; knew, and I couldn't believe that they never discussed it.

I therefore became convinced that President Nixon was at least

Chesterfield Smith 83

mis-stating the facts about that so I was not completely open

minded--at the time that this came out.

And when he stated that he had worked out a compromise to

Judge Sirica's order, that he refused to submit it to Judge Sirica

for consideration or approval, that he felt that this was a proper

way and that he had talked with Senators Ervin and Baker and that

tney all agreed that senator Stennis could look at the tapes and

pull out uwhat they wanted was enough and that he was directing Cox

not to interfere in any vway or take it to court or to enforce Judge

Sirica's order and he stated he was neither going to appeal it nor

couple .'ith it, I thought it was a frontal assault on the court

system and that it deserved the response from the legal profession

and taat I, as the president of the American Bar Association, had

an oblibatio;. to defend the system of justice and to repel what I

co:-sicered to be an unprecedented and unwarranted attack or assault

upon the court system; I think my statement picks up from there.

I.i I ow in connection with the ABA influence in Washington, it seems

strange tnat the washington office of the ABA is not structured as a

lobbying arm as it is usually the case with other groups; professional

and trade organizations have offices staffed with people who do

lobbying. .4hat is the explanation for that?

S: .;ell, I think that there's a lot of explanations, part of it

historical. One is that we've gotten over the years a lot of free

Chesterfield Smith 84

work from people who are very knowledgeable in lobbying and who

have handled our program and sometimes have lobbied for the fevw

things that we've felt that we should lobby on. But in a general

sort of way, the Association has not supported things that are for

its special benefits but has supported things that were more in the

interest of society as a whole as it saw them in the Washington area.

i;o\. that's not always true. '-e have supported self-employed

retirement benefit legislation, which could affect a lawyer indi-

vidually. Je have been involved with certain aspects of lawyers;

limitations on lawyer fees and some other things that may be special

interest things, but much of our lobbying has been for the court

system and for judges and for improvements in the administration of

justice. In recent years we've e done some legislative work in oppo-

sition to federal no-fault, which is another area that maybe we have

a special interest in, but not much.

There are many lawyers that both are in the Congress and are

members of the American Bar Association and many lawyers in Washing-

ton or elsewhere vwho follow, Congressional actions and they have done

some lobbying, quite often not even in the name of the ABA but in

their own name, as ones who are interested in the legal profession,

and they'll recite the positions that the ABA has taken on something.

Je also have effectively requested lawyers from home to contact

people and to the extent that that kind of pressure has been put

on in blanket ways we have lobbied. In a few cases even, not many,

Chesterfield Smith 86

whicn we had taken positions, such as antitrust or criminal lawyers,

was a more effective way than it would be to have full time lobbyists

because quite often the legislation that we endorsed was of a tech-

nical nature or aspect.

But as the world becomes more complex and people become more

concerned with legal services and with justice and other things and

the structure of the legal profession is looked at to see if every-

body is being treated equally and getting due process in such things

as criminal justice or in civil law for people of moderate means or

poor people, %.e need to beef up at least to some extent our rWashing-

ton agencies, because there will be more effort needed to see two

things happen: one, that the positions taken by the Bar as disting-

uished from arm twisting are made known to all Congressmen and the

reasons for them; and second, so that they can alert people back

home, la..:wers, state bar associations, local bar associations, of

particular matters that are happening in the federal Congress so that

they can take their own positions pro or con. Legislation and laws

and government are really part and parcel of a lawyer's life and to

some extent his profession and they are not just simply regulation

like it affects other people but they're our tools to work with daily.

And so I'd say that most lawyers have been more interested in

the substantive and procedural law as it applies to their clients

tnan they are in any regulation as it affects them, which is in

distinction to other professions. All in all I think our uWashington

Chesterfield Smith 35

our ..ashington office or others have telephoned specific lawyers

at home who they might feel were friendly with a particular Con-

gressman or a Jenator and asked them to contact him.

Wie have not had, at least until recent years, what we might

call major investigation or thrust towards the legal profession as

a whole and we've never felt it necessary to have an active lobbying

effort like some other professions. There are those now in the

profession vwho feel that the issue of group legal services, mini-

mum fee schedules and others is some kind of effort by Congress to

cha-ge the course and direction and structure of the legal profession

and that ,,e should be heavily involved. There are also those who

feel that no-fault is of critical imperative to the associationn and

that .e should be heavily involved there. And then we have the

recurri-n problem that we've e al;'ays had of judicial salaries and to

some extent lawyers' salaries in which there's a feeling on the part

of many men including me that judicial salaries are now at a ridic-

ulously low point and that they are at such a point that it will

mitigate efforts to select the very best men for the federal judiciary.

ll in all, what it comes down to is that I think that the

policy of the Association to have primarily an office that was a

little more than an information office but which responded to requests

from the Congress for information or positions or who advised the

Congress of positions that the Association had taken or who coordi-

nated appearances of la,,yers back home who were expert in fields in

Chesterfield Smith 87

operation is pretty good in that we have been able to find these

expert lawyers, who are more expert than anybody vie could possibly

hire, who will freely go to d-ashington and respond.

We keep control over it. The Association won't let anybody

speak unless they have been authorized by the president or the House

of Delegates and they speak only on Association policies normally;

sometimes w;e have permitted people in our tax section, our antitrust

section, and our criminal la'.. section and administrative judges con-

ference to make technical comments that don't relate to substantive

positions in these matters on procedure or other things in the name

of the section or the committee, but not the Association. In that

case, blanket authority is given by the president for them to speak

as long as they restrict it to those areas and not relate on substance.

One of the things that ,we are finding out is that there were

.any areas of the executive branch of government or the administrative

age-ncies, ;whatever they are, that ,were taking actions that materially

affected the legal profession or lawyers w'ho relied on the AEA to

convey to them what was happening and that we didn't have enough

personnel up there to cover it. We were primarily just covering

the Congress and to a lesser extent the United States Supreme Court

or the Department of Justice.

Chesterfield Smith 88

They are now trying to do more with some of the other agencies

and follow; them better, and I think we will this year substantially

beef up the iashington office and add additional personnel, but it

will be primarily a continuation of the existing policy, we'll just

try to do it better. Je'll try to get people to cover more agencies

and write more newsletters to the local and state bar associations.

I guess the conclusion is that the American Bar Association has

concluded th-at the most effective program it could have ,rith the
Congress is to demonstrate to the Congress that it has an interest

i- socie-ty as a -:hole in a responsible way and not just as a spokes-

m-an. for a trade association and that second, that the most effective

-a to convey that to me;-mbers of the Congress is through lawyers ..:ho

E.r inL~r-ested back home and are constituents of those Congressmen

&rathr t;n to follow- the traditional role of a business enterprise

or some other enterprise who does not have that national constituency

that w:e have and ;who have to make their own contacts on the merits

Sixth Congressmen.

L.: ;o, much has been written about the prepaid and group legal

services and anyone can look up the opposing sides, but it seems to

me that the discussion in print isn't quite satisfactory. Why is

taere such a conflict between proponents of open and closed panels?

It seems to me that ideology is involved, perhaps also economic

factors. .iould you care to comment on that?

Chesterfield Smith 89

St Sure, I'd be glad to comment. Of course, there's a great mis-

understanding and not everybody understands the issues or what they

are talking about. There's a lot of sloganeering and some people

will say that they are doing one thing when people will accept that.

That's what they are trying to do without analyzing the issues, but

in a general sort of way I think it's fair to state that the issues

may or may not be economic, depending on what you want to construe

to be economic. Most lawyers who oppose this are rather successful

in their life and what they are doing and they are scared of any

radical changes in structure to upset the status quo to the extent

that they want to continue to enjoy what they now have. That's econ-


They are not trying to utilize that as a way to make more but

to keep from losing things. They feel that some lawyers might be

able to take away what they now have if they are permitted to go

certain ways and so they get worried and nervous about things that

they don't really know and they start looking then because they

want to preserve the status quo only because they've got three kids

in college and a big mortgage and they're meeting the payments now

and they want to keep doing it so to speak. They start looking for

ways to argue why the existing status is the best way and they then

argue third party interference with the attorney-client relationship.

They argue that there will be control over the lawyer and he

won't be fearless and zealous and independent but that he instead

Chesterfield Smith 90

will respond to what the third party who selects him wants rather

than to the individual client that he's involved with and they

worry about breaking down the attorney-client relationship and

the professional status, not as abstract principles but primarily

because they doubt that it will do any good and they are scared as

to the harm that it might do.

Those who are in small firms or practice alone worry if it's

not some device by the big firms, who hog all the profitable business,

to take little individuals whom they now represent and bring them

together where they're, a big firm, and they'll give them all their

specialties. Or those who live in the country are worried if this

is not some way to get a group big enough so that the city lawyers

can afford to come out and handle it or staff it. Or those who have

a practice that they work hard at and they don't really charge too

much money but they are scared that a group legal service plan might

be able to do it cheaper than they can and still render effective

service, so they're all nervous.

They don't know what's going to happen and to that extent it's

an unselfish economic thing in some ways in that they don't know

that they are trying to preserve and protect themselves, they really

just know that these new ideas are liable to tear up the ball park

and tear up the ball game and we're getting along good and why do

they want to do all these things and they don't see much good out

of it and they worry and see fears out of it.

Chesterfield Smith 91

Most of them will not accept the fact that there is an unmet

need for legal services nor will they accept the fact that there

are people who want to hire lawyers but who are not economically

able to do so. I'll say that the people who oppose group legal

service plans are those lawyers in general who have not been as

successful as other lawyers and who are getting by and they're

scared that they are going to quit getting by.

Another group are those who have gotten committed for some

reason to a certain bar position, such as a large firm lawyer, we'll

say, who gets involved in bar office and all of a sudden he feels

he's the protector of the old county seat lawyer and that he needs

to speak for him from then on and he feels a kind of a holy glow

because he knows that he's not speaking for himself but he's

speaking for all of his section and all of those people who

represent farmers out in the midwest and that this is a dangerous

socialistic document, a doctrine that might tear down the historical

independence of the legal profession.

There are all kinds of motivations, but I'll say that the

primary reason that there continues to be opposition to group

legal services is because the people do not yet want group legal

services and the proponents and the opponents are neither one able

to show that the public is waiting for them. The proponents say

if we just do this more a lot of these people would come, but they

can't show it yet. There's really never been any definitive type

Chesterfield Smith 92

study of any kind showing that anybody wants to budget as much as

ten or fifteen dollars a month out of a thousand dollar a month

salary, we'll say, to pay for legal services. And so the argument

is very theoretical and when there's a group that wants to get a

group legal service plan through now, they generally can, and the

opponents generally don't fight a specific proposal but instead

fight the concept some way and the generalities and whenever the

breakthrough comes, if it ever does, where people decide that this

is the way that they want to have legal services, there's enough

support in the bar associations that reasonable plans can get through

and that restrictions that are necessary to preserve essential profes-

sional values can be adopted and maintained.

Now the essential professional values have to be that the lawyer

has an ethical responsibility to the individual member of the group

rather than to the group as a whole, and that his judgment as to

the action he should take in behalf of that individual client has to

be an independent one and not controlled by the group as a whole.

Those are essential things and they can be preserved and protected

and can be disciplined just like, not without problems, just like

you can say a lawyer should be honest; well, that doesn't keep all

of them honest. You can say he should be independent of the group,

and that won't necessarily keep them all, but one concepts no harder

to enforce in a disciplinary or professional way than the other.

Chesterfield Smith 93

And so, I'll conclude by saying that a lot of this is just

talk, it's a lawyer's exercise in semantics. They quite often

don't disagree as much when they get down to it as you'd think

they do from hearing. They're usually willing to make some

exception that will answer the merits there, but they continue

to voice general objections and they won't change their general

objections and I honestly can say that I believe that most of the

responsible opponents now believe that group legal services are

inevitable if the people want them. They are inevitable in that

they believe that the courts are going to liberally construe the

constitution to protect the rights of the people to associate

together and employ legal counsel and they believe that a majority

of the profession in the Association will respond in an adequate


Again, I mention that because the opponents are now going, I

think, to agree to eliminate most of the differences between open

and closed panels. They adopted in Houston in very controversial

amendments the same amendments that were proposed by the McCalpin

committee basically in 1968, which they opposed so much then and

yet they sponsored as an answer in Houston in 1974, so in six years

they'd come from opponents to sponsors there. The sponsors back

then had gone further down the road like we do in many things, but

it's an evolutionary process and the better element of the bar is

now sponsoring group legal service programs and in most of the

large state bar associations having a majority of the lawyers,

Chesterfield Smith 94

there is an official position of the bar that recognizes the

viability of group legal service plans, states like New York,

California, Florida; there are states like Tennessee, like

Arkansas, like Mississippi, like Utah that continue to be fearful

of them. And there are just as many states or more that are fear-

ful but they don't have but maybe a fourth of the lawyer population

of America. The bulk of the big states all support them.

Ms What about specialization now? This is in some sense related

in as much as there is a great deal of debate, but it seems to be

different at the same time.

Si Yes, I think it is different. The proponents of specialization

certification in my judgment almost have no economic incentive and

it's my judgment that the bulk of them believe that that's the best

structure of the profession to achieve economy, efficiency, and to

permit lawyers to community to the general public their special skills

so that they by repetitive experience can enhance those skills and

get themselves in such a way that they can render the same service

with less effort and with benefit to the public. They don't really

most of them plan to do it themselves.

There are certainly some people who specialize to increase their

income. But most of the people who are arguing for the certification

of specialists already specialize to such an extent that if any program

was put in they wouldn't materially change their way of doing business.

Chesterfield Smith 95

I don't think that any of the programs contemplate nor do I nor

have I heard anybody else permitting law firms, for example, to

advertise and change an operation materially from the way they

do it, nor are any of the programs designed to appeal just to

sophisticated clients who have ways and means of analyzing lawyers

and evaluating them for a legal proficiency but to make at least

a modicum of knowledge available to the man who rarely or never

consults a lawyer.

The opponents are about the same kind of opponents that I

mentioned in group legal services and about for the same way in

that they worry again about changing the status quo. That may

include more opposition from large firms to this than to group

legal plans because the large firms all have effective legal

specialization. Take a large firm in Chicago, like Sidley &

Austin, I think you could take judicial knowledge that that firm

with 180 lawyers or whatever they have must have a specialist in

every area of the law and that if you have a problem there that

they ought to have somebody who is at least reasonably good in

that particular area and that you therefore can go to them and

your matter will be properly referred to that lawyer and handled

properly by him; whereas if you go to a three-man firm, certainly

in some of the more esoteric practices they may not be legally

sufficient. In large firms, therefore, those people who are

specializing already have the benefits of specialization and

clients choose them to some extent because they don't know of the

Chesterfield Smith 96

legal proficiencies of others and so there's more opposition

within large firms from people who specialize, to the certifi-

cation of specialists, than there is from those same people to

the increased use of group legal plan.

Individuals, it may be individual practitioners or small

firm lawyers, I have argued, and perhaps only as a theoretical

exercise, but I happen to believe that they may be the prime bene-

ficiaries within the ranks of the legal profession to a system of

certification if they were able to work out some kind of system

similar to that followed in the medical profession where they

referred only complex or unusual problems to the specialty and the

person came back to them for their other services. Right now with

unregulated specialization, they have to compete with large firms

and it's a usual and not unusual thing for a lawyer in a large city

or a small city to kind of grow up with a client and to do all of

his work and if the lawyer stays small, an individual or sole prac-

titioner, and the client keeps getting bigger and bigger, before

long the work gets too much for the lawyer. So the client goes to

a large firm or he gets too much work and he talks to his lawyer

and he sends him to a law firm and then the client likes the large

firm so much and he's got another matter and he says 'You don't

handle that,' and before long the large firm's handling all the work,

and the little lawyer's not handling any.

Chesterfield Smith 97

Well, I think a system could be devised, and we've worked on

them and I encourage them, where that practice was at least chilled;

we made the individual practitioner or the small firm much more capable

of competing with the large firms than they are now by making indi-

vidual specialists available to them that they could pick and choose

and get service for their client, or if you wanted to, to put an

artificial restriction that if you referred the matter to a specialist

so certified, not an ordinary lawyer in another law firm, that it would

be unethical for that law firm to represent that client in any other

matter in the future.

Now you'd have to change the ethics and the case may be hard.

The only way you could justify, that is, encourage legal speciali-

zation, is that legal specialization in and of itself makes legal

services more readily available to the consuming public by making

our manpower supply of lawyers more efficient and proficient and

able to render the service at a reduced price. You have to ration-

alize through, but a lot of our ethical restrictions are rational-

izations. There are other ways that it could be done but I think

that the trend is more and more towards firm practice, more and

more towards large firm practice and away from individual prac-

titioners and it will be so unless we do get some kind of system

of legal specialization that is available to a small firm and gen-

eral practitioners.

Chesterfield Smith 98

Now another difference in legal specialization that we have

is that in the medical profession where specialization has been

successful, in my own personal judgment, in upgrading the quality

of medical services, they have clients or patients who are of

relative importance in that if you are going to have an operation,

in a general sort of way it takes the same work for a poor man as

a rich man. They pay some way, or somebody pays, something at

least in the range that is comparable, the same fee.

That's not so in the legal profession. If you are in a small

town and you represent the bank, there's no other lawyer in town

that can represent the one bank there and that may be the best

customer there. If you represent General Motors locally, there's

nobody else can represent them. You get clients, my firm has clients

that as many as five lawyers, six lawyers are working for at any

particular time. An individual practitioner can't service a client

like that; there's no way. So clients being of different importance,

the only way he could ever represent him is to have an array of

specialists someway that he could refer things out to them and act

as some kind of private house counsel, so-called, or local counsel.

It's the same way as a private house counsel.

I think that they are doing wrong by opposing that and that it

may be the ultimate salvation that they'll have, general practitioners

and individual practitioners and small firms, and that unless we do

get some system of certification of legal specialists, they are a

Chesterfield Smith 99

dying breed. But they don't agree with me and they generally

oppose it and so I'd say that the prime opposition to legal

specialization comes from country lawyers.

The large reason that is not overwhelmingly endorsed by the

profession as a whole is not their opposition, but the fact that

large firms are either apathetic to it because there are no bene-

fits in it to them or that some of them are nervous about upsetting

the status quo and that someway it might adversely affect them and

so they even work against it.

Mii would you go as far as the medical profession has in which

board certified specialists must limit their practice to their


Si Well, the official position of the ABA which I still endorse--

I helped draft it--is that we don't know enough yet to answer that.

I now favor not restricting them only to that practice but we should

have some experiments that we have multiple states enter in, in which

they do it both ways so that we could see which benefited the public

most and did least harm to the profession. I like to think that it

won't help the profession especially, but others think that it will.

There are those who say that anybody supports specialization

solely because they think that a lawyer, if he can get real good at

something, can charge the same fee for doing what he's doing now but

Chesterfield Smith 100

he can do ten times as much and therefore make ten times as much

money. I would hope that he would charge one-tenth as much and

that the public would be served better or at least he'd charge

one-eighth as much and that he'd just make a little bit more and

that the public would still be a lot better off. But I don't know

about that. What was the question? I haven't answered it, I know


Mi You have. I asked about the real opposition to both speciali-

zation and group legal services, where it lay, because anyone can

read up what's in print. Now, one question that perhaps relates to

both is....

S, In the ABA fights the articulate opposition spokesmen are con-

nected with the General Practice Section, which is in truth in fact

made up about half of real individual practitioners or general prac-

titioners, but many of the leaders who are almost monastic in their

approach to the matter come from medium to large firms and are quite

successful in themselves and who either specialize or people in their

firms specialize, but they argue on behalf of the other crew and they

feel very strong about the rightness of their position. That's where

it generally comes from and from large firms.

You hear so often he's a tax lawyer, he's a labor lawyer. I

thought that support for these programs would come from those organi-

zations. They too, in general, are opposed to it because they already