Speeches by Chesterfield - Vol. I, 1a-22 and misc. 1966-1968

OLD SPEECH
#(a) 1

"Oral Argument on Appeal on "Trial of.Jesus"
Presented to Adult Sunday School Bartow
Easter Sunday, April 10, 1966

INDEX OF ZSPtECHES
OF
CHE S'-REE-LaD. :SMITH

VOLUME I

SPEECH NUMBER
'I-

# 1

# 2

# 3

# 4

# 5

# 6

# 7

. ;'T-iLE OR GROUP ADDRESSED

NTPODUCTION OF GOVERNOR
2'th ANNUAL CONVENTION
THE -FLORIDA BAR

CLAUDE" KIRK -

OPEN SPECIALIZATION, SHOULD".STATE
AND LOCAL BAR ASSOCIATIONS TAKE
A POSITION?:

OPEN SPECIALIZATION SHOULD, STATE
AND' LOCAL BAR ASSOCIATIONS TAKE .
A POSITION?
(longer version)

ADDITIONAL NOTES RE. SPECIALIZATION

ADDRESS .Tri.- NEW '$ADMITTEES.
-TOQ HE-FLLORIDA BAR:, :

RE. PROPOSEDD AMENDMENT. TO THE '; :
AMERICAN: BAR ASSOCIATION. NI'TUTION
REGARDINGC MANDATORY AGE LIT 'OF.;
70 YEARS OF AGE FOR HOUSE"'OF
DEL 4ATES.MEM1ERSHI-P

REMARKS OF CHESTERI.ELD `,SMITH ON
THE JUVENILE JUSTfiE S-TANDARDS -
PROJECT OF THE AMERICAN BAR..
ASSOCIATION AND THE ',I-NSTITUTE&"'
OF 'JUDICIAL ADMINISTRATION- :,.
(FIRST DRAFT)

VOLUME I (contd.)

SPEECH NUMBER

TITLE OR GROUP ADDRESSED

#10 -- / 773

#10 (a)
(Also a copy in
1977 section
numbered #181)

#12

#13

#14

#15

THE HUMAN DEBRIS OF THE VIETNAM
WAR AND THE OBLIGATION OF THE
LEGAL PROFESSION

CHANGE IS WITH US, AND CHANGE
IS COMING

CONSTITUTIONAL REVISION COMMISSION -
December 14, 1966

REPRINT OF REMARKS BY MR. SMITH
"The Journal of the Florida
House of Representatives" (1/10/67)
EXTRAORDINARY SESSION
January 9, 1967
"Constitution Revision Commission"

ROUGH NARRATIVE OF PROCEDURE
FOLLOWED BY THE FLORIDA CONSTITUTION
REVISION COMMISSION

LAWYERS TITLE GUARANTY FUND
ANNUAL MEETING -
RE. CONSTITUTION REVISION -
March 3, 1967

JACK OF ALL TRADES THE CASE
FOR SPECIALIZATION -
VIRGINIA STATE BAR -
Arlington, Virginia
May 19, 1967

OPEN SPECIALIZATION SHOULD STATE
AND LOCAL BAR ASSOCIATIONS TAKE
A POSITION -
NATIONAL CONFERENCE OF BAR PRESIDENTS
Honolulu, Hawaii
August 4, 1967

REMARKS OF CHESTERFIELD SMITH
GIVEN AT ORGANIZATIONAL MEETING
OF ABC COMMITTEE
Tampa, Florida
September, 1967

VOLUME I (cont.)

SPEECH NUMBER TITLE OR GROUP ADDRESSED

#16 TRAFFIC COURT AWARD PRESENTATION
Clearwater, Florida
October 5,'1967

#17 SHOULD SPECIALIZATION OF LEGAL SERVICES
BE FORMALIZED? RECOGNIZED? ADVERTISED? '-
DISTRICT OF COLUMBIA BAR ASSOCIATION
November 14, 1967

#18 THE CASE FOR LEGAL SPECIALIZATION -
THE VIRGINIA STATE BAR
January 6, 1968

#19 THE CASE FOR LEGAL SPECIALIZATION -
Tampa, Florida
February 11, 1968

#20 THE CASE FOR LEGAL SPECIALIZATION -
CLEARWATER BAR ASSOCIATION.
March 4, 1968

#21 SPECIALIZATION IN THE LAW? -
LAW ALUMNI DAY, UNIVERSITY OF
PENNSYLVANIA
April 25, 1968

#22 SPECIALIZATION IN THE LEGAL PROFESSION -
LAW REUNION DAY, UNIVERSITY OF
FLORIDA COLLEGE OF LAW
Gainesville, Florida
May 4, 1968

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 1A

VOLUME I

ORAL ARGUMENT ON APPEAL ON "TRIAL OF-JESUS"

Presented to Adult Sunday School,
Asbury Methodist Church, Bartow
on Easter Sunday, April 10,. 1966

Counsel freely admits that this appeal from the deci-

sion of the trial court is not timely, as it. was long ago

.' conclusively decided. Without doubt, the overwhelming weight

of world opinion is. that the result reached in the trial be-

low.was the most gross miscarriage of justice the worId has

ever known. This Appellate Court, therefore, will.,have the

,, judgment of history as a valid point.for its consideration.

Nevertheless, on this Easter Sunday, I shall ask that you col-

lectively serve as appellate judges, to hear argument of coun-

sel, on appeal from the decision of the lower court made almost

2,000 years ago in the trial of Jesus of Nazareth.

In proceeding with your Honors as appellate judges, it

seems appropriate that the applicable law be first reviewed.

That. law must then be applied by you to the facts as, such.

facts are revealed by the trial record made in the court be-;.

_<. low. References to the record are by book, chapter, and verse

of the King James Version of the Holy Bible.

Counsel well knows that you as appellate judges in

deciding this .appeal cannot grant-Jesus of Nazareth a trial

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c- ---- ------- -~"-s~laraolsprrJEeXIR1I~I~~'-

', de novo, recognizing fully that you are bound by the facts as

recorded in the trial record. However, it is on that record

that we rely. We ask only that you patiently search that

record for the truth.

In determining this case, please keep in mind that

Jesus was first tried under Jewish law and then under Roman

law. ..

Accustomed as we in America are 2,000 years latertto.

take pride in the protection that our Anglo-American law

throws around a person, you may be surprised to learn how

solicitous the Jewish law was for human life.

Among the many safeguards then-afforded an accused by

Jewish law were the following:

(a) There could be no conviction for a capital offense

. on testimony of less than two witnesses.

(b) Each accused had the right to counsel.

(c) An accused could not be required to testify against

himself; even a voluntary confession'was not competent for con-

viction.

(d) Circumstantial evidence was not admissible.

(e) Each accused was presumed innocent until tried and

convicted.

(f) Each accused was entitled to a public trial 'no

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evidence could be produced in absence of defendant.

(g) No capital case could be tried at night, on a Fri-

Sday, on the Sabbath, or on a feast day. No sentence could be

S carried out at those times.

(h) The sentence on a verdict of guilty could not be

pronounced until the third day after the verdict, and then

only after a second vote with the same result as the first.

(i) All witnesses were admonished to remember th'e

value of human life and to take care that they should forget

nothing that would tell in the prisoner's favor.

(j) In' order to add greater certainty, all witnesses

against the accused were required in case of conviction of a

capital offense to take an active part in inflicting the

death penalty; a witness testifying falsely was subject to the

same punishment as the accused.

(k) Witnesses against the accused were the only pro-

secutors and the only executioners.

To sum up, under Jewish law, the first object of the

entire proceedings appeared to be to save the accused. It

was an axiom that the function of the Court was-to save and

not to destroy human life.

Again briefly, to review for your Honors, I want to
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refresh your recollections on the make-up of the trial court.

The Jewish Court was the Great Sanhedrin, whose origin

was ascribed to Moses. Jesus of Nazareth was tried and con-

victed by this Court, which, among other things, had original

jurisdiction of crimes punishable by death. The Great Sanhe-

drin had civil, criminal and religious jurisdiction.

This court of 74 had two presiding officers who al-

ternated. It had three chambers: a religious chamber made up

of 23 priests; a low chamber made up of 23 scribes; and a popu-
.8
lar chamber made up of 23 elders.

The defendant, Jesus, referred to the Great Sanhedrin

when he told his disciples, and I quote: "He must go unto

Jerusalem and suffer many things of the elders and the chief

priests and scribes and be killed." (Record Matthew 16:21)

Under Jewish procedures, extreme care was used in the

selection of the personnel of this great court. For example:

(a) No man interested in result could sit as judge.

(b) All members had to be Hebrews, versed in law --

each was required to know the language of the surrounding nations.

(c) All sessions of the Court were held in Jerusalem.

(d) 23 members of the court were required as a quorum

in criminal cases. *
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(e) The members of the Court could not act as prose-

cutors or accusers, but were required to protect and defend

the accused. Serving as both judges and jurors, it was their

sole duty to determine the question of guilt or innocense

according to the law and the evidence.

The procedure of trial was somewhat similar to the

trial procedure as it is familiarly practiced in our Courts

today. It required first, a hearing to take testimony;, then a

summary was given'by one judge; thereafter, the spectators

S. were removed, and-the judges ballot; two scribes tabulated the

vote, one counting the votes for conviction, the other for

acquittal.

In order to obtain a conviction, a majority of two

-,,.:or more of the quorum of 23 was required; if any judge wanted"

: additional evidence before voting, the number of judges was

increased by adding an equal number of priests, scribes, and

elders until the full council.was reached.

If the majority voted for acquittal, the accused was

discharged. If the majority voted for conviction, no announce-

S ment of the finding could be made at that time. At least one

day had to intervene between the vote for conviction and the'

pronouncement of the verdict of guilty and the sentence.
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I

During this interval the judges could not be engaged in any

activity that would divert their minds from the case.

After the morning sacrifice, and not later than the

third day following the vote, the court returned to the

judgment hall and proceeded to take another vote.

A judge who originally voted for conviction might now,

vote for acquittal. But not the other way. If he first

voted acquittal, he could not change.

It was the duty of the court to defend the accused;

and a verdict of guilty without some member of the Court having

interposed a defense was invalid. Therefore, contrary to the.

law as you know it today, a unanimous verdict of guilty indi-

cated that there was a conspiracy against the accused, that he

had no friend or defender, and that the verdict was reached

without mature deliberation. Such a verdict had the effect of

an acquittal. The court was bound to protect the accused from

insult or injury, and indignities committed against him sub-

jected the tormentors to the same punishment as if directed

against any innocent citizen.

May it please the court, that was the Jewish law under

which.Jesus was tried. It is now the duty of this court to

determine if the Great Sanhedrin as the lower court correctly
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applied that law to the facts as clearly set forth in the

record. Counsel submits that manifestly it did not. Let us

now consider the hearing before the Sanhedrin.

Israel was not a democracy with church and state se-

parated, but a theocracy with' church and state united.

Counsel submits that the record clearly shows that

those then in authority, believing that Jesus would assert

his claim to be the Messiah and attempt to usurp their power,

used every means to discredit him, finally arresting and

accusing him without any legal authority. The record below

shows that Jesus was.bound, and-then taken into the Judgment'

Hall of the.high priest.

The chief priests, scribes and elders had waited all

night, anticipating the illegal arrest following the betrayal

of Jesus by Judas.

The quorum of the Court was made up chiefly of the

.priestly clique, whose hypocrisy Jesus had publicly denounced.

Counsel submits that the record shows that all the quorum

were conspirators in a plot to put Jesus to death and therefore

disqualified to sit as judges.

If not, why were they holding this session shortly

after midnight on a feast day, in violation of the law?
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E m M6.- ixii i i -, -- - ___- -.

Under the law as you have seen, the first step was

the arraignment, the reading of the charges in open court.

The record is silent to an arraignment of Jesus of

Nazareth or any lawful accusation upon which it could be

based. Instead, the record says (record Matthew 26:59-60)
I -
that the court:

"sought false witnesses against Jesus, to

put him to death; but found none; yea, though

many false witnesses came."
.A
It was obvious that the perjurers in the crowd who

sought the death of Jesus were unwilling to risk the conse-

quences of a false accusation -- death for the accuser himself.

"At the last came two false witnesses"

(record Matthew 26:60), "but their witnesses

agreed not together." (record Mark 14:56)

One stated that Jesus said, "I am able to destroy the temple."

(record Matthew 26:61). The other swore that he said, "I

will destroy the temple." (record Mark 14:58). On-this,

the prosecution rested.

What Jesus did say, referring to the temple of his

body, and not the Jewish temple, was:

"Destroy this temple, and in three days'I
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- 1 III1I Il"~ll~ac

will raise it up." (record John 2:19)

The witnesses not being in{ accord on the charge, it

is crystal clear that under the law. Jesus was entitled to.an

acquittal, without being questioned as to his defense or com-

-pelled to testify against himself.

Instead, the high priest called upon Jesus to make

his defense. (record Mark 14:60). Jesus made no response.

Instead of defending the accused, as, required by law,

the high priest himself became an accuser and to an entirely

different charge, in utter violation of all law. He sprang

to his feet shouting:

"I adjure thee by the living God, that

thou tell us whether thou be Christ, the

Son of God." (Record Matthew 26:63)

: Jesus, though he could have remained silent, chose to speak:

"If I tell you, ye will not believe; and

if I also ask you, ye will not answer me."

(record Luke 22:67-68)

.: This excited the whole assembly, which cried out:

: "Art thou then the Son of God." (Record

Luke 22:70)

Courageously, Jesus signed his death warrant with'the words:
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a

"Thou hast said." (Record .- Matthew 26:64)

SThe high priest announced the judgment of conviction

forthwith:

"He hath spoken blasphemy; what further

need have we of witnesses." (Record -

Matthew 26:65)

Seeing the high priest rend assunder his judicial robe

. in token of his horror of blasphemy,. the crowd knew.tha't Jesus

had been found guilty and they shouted:

"He is guilty of death." (Record -

Matthew 26:66)

There was no longer fear of a public uprising, for the

mob, who had acclaimed Jesus with "hosannas" only a few days

before, had turned against him.

Under Jewish law which we have heretofore presented to.

your Honors, Jesus could not lawfully be convicted of a capital

offense on his voluntary "confession" alone.

His statement was not'blasphemy for he never usurped

to himself power and authority belonging to God alone. Instead,

he said:

"I can of mine own self do nothing."

(Record -.John 5:30)

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: "But the Father that dwelleth in me, he

doeth the works." (Record John 14:10)

Contrary to the clear duty imposed by Jewish law, the

Sanhedrin made no effort to show that Jesus was an imposter; it

gave him no chance to prove the truth of his statement that

he was the.Messiah, the Son of God -- not God himself.

The following gross violations of due process are

prejudicial error justifying a reversal of the conviction of

Jesus by the Great Sanhedrin:

The first hearing concluded about 3 a.m. -- 'The Court

adjourned only to daybreak, although the law required that

one full day intervene before the second hearing.

No lawful sentence of death could be pronounced until

the second hearing, with the result of the second vote the

same as the first.

Pending the. second hearing, Jesus was presumed inno-

cent. Under the law, the Court might still acquit him. Al-

though entitled to safeguards against his person, he was never-

theless subjected to violence and insults at the hands of,the

crowd in the courtyard.

Later in the guardhouse, he was struck with rod and

fist .

Members of the Court were present, but made no move

to stop these outrages against a man not yet legally sentenced.

The second hearing commenced about 6 a.m.

Jesus was dragged back into the Judgment Hall for

the final hearing.

"And as soon as it was day, the elders of

the people and the chief priests and the

scribes came together and led him into their '

counsel." (Record Luke 22:16)

The session was perfunctory -- there were no witnesses.

Again the law was violated by requiring Jesus to testi-

fy in answer to the question: "Art thou then the Son of .God."

(Record Luke 22:70). Jesus replied: "Ye say that I am."

(Record Luke 22:70). "Hereafter ye shall see the Son of Man

sitting on the right hand of power." (Record Matthew 26:64)

The whole assembly shouted:

S "What need we any further witnesses? For

we ourselves have heard of his own mouth."

(Record Luke 22:71)

The votes of the judges were registered and final judg-

ment rendered without removing the spectators, although the

Zaw required that the chamber be cleared.
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I

him:

"What accusation bring ye against this man?"

(Record' John 18:29)

As Pilate was required to take up the casetanew as a

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The record recites:

S "And they all condemned him to be guilty

of death." (Record Mark 14:64)

Since no judge defended the accused, the unanimous

verdict was invalid as evidence of a conspiracy.

Under Jewish law, death by stoning would have been

the sentence. Rome alone, however, had the power to give the

death sentence. '

The Sanhedrin had power to make the accusation before

the'Roman magistrate. They carried him to Pontius Pilate.

Let us briefly then consider the proceedings before

.Pontius Pilate, who bore the imposing title of "Imperial

Procurator". Under Roman law, he had jurisdiction over capi-

tal cases in Jerusalem, with the duty of reviewing all cases

from the beginning. Each accused was entitled to a trial de

novo before him. :From his judgment, the only appeal was to

the emperor.

Pilate inquired of the priests who delivered Jesus to

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trial court, this was a proper question.

Nevertheless, the priests were shocked and said:

"If he were not a malefactor, we would

not have delivered him up unto thee."

/ (Record John 18:30)

The record shows that Pilate then refused to enforce

the Jewish law, and because under the Roman occupation laws

only Pilate could condemn Jesus to death, the priests brought

an entirely new charge against Jesus under Roman law.

They said:

"We found this fellow perverting the nation,

and forbidding to give tribute to Caesar,

saying that he himself is Christ a King."

(Record Luke 23:2)

What Jesus really said was, "Render therefore unto

Caesar the things which are Caesar's; and unto God the things

that are God's." (Record Matthew 22:21.)

Pilate then conducted a preliminary examination of

Jesus as required by Roman law to ascertain if there were suf-

ficient basis for holding him for trial.

At the conclusion thereof, he went out to the Jews, and

pronounced his first emphatic acquittal:

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"I 'find in him no fault ,o ."

(Record John 18:38)

Thus far, Pilate had followed the Roman law, and it

was now his duty to discharge the prisoner.

But instead he listened to another charge brought by

the Jews:

"He stirreth up the people, teaching through-

out all Jewry, beginning from Galilee to

this place." (Record Luke 23:5)

Pilate ignored this latest charge altogether, but as

an avenue of escape from the wrath of the Jewish mob, he caught

on the word "Galilee" and ordered that the responsibility

for trial be shifted to Herod, the tetrarch of,Galilee, on the

assumption that Herod alone had jurisdiction to try a charge

arising in Galilee.

Herod was then in Jerusalem. When.he heard the

..charges, he was not impressed. Insolently, he arrayed Jesus

in a gorgeous robe,-in mockery of his kingly powers,. and

S-.. returned him to Pilate without rendering any decision at all.

Counsel now submits to this Court that such action on

Herod's part amounted to another acquittal, if this irregular

.". -1.: proceeding had any legal status at all.

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The accusers again took Jesus before Pilate, deter-

mined to force the issue. Pilate thereupon pronounced his

S second judgment of acquittal, saying:

"."Ye have brought this man unto me, as one

that perverteth the people: and, behold,

I having examined him before you, have

found no fault in this man touching those

things whereof ye accuse him: No nor yet ,

Herod: for I sent you to him; and lo,

nothing worthy of death is done unto him.

I will therefore chastise him and release

him." (Record Luke 23:14-16)

To appease the crowd, he then had Jesus publicly

scourged with rods in violation of law..

Counsel submits that the execution of'that illegal

flogging was in and of itself a complete bar to further

punishment. At that very time, Jesus as a matter of law was-

finally and fully entitled to his freedom. A rehearing of the

case at this stage obviously would have constituted double

jeopardy.

Pilate then tried to release Jesus, but the blood-

thirsty mob would have no part of that. act.. In ah exchange'
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with Jesus, Pilate became more eager than ever to save Jesus,

but he lacked the fortitude to take a bold stand, and eventually

She cringed before the fanatical crowd. His God-fearing wife

appealed to him to save Jesus, but he was fearful of jeopardizing

- his own position.

As your Honors know, it was the custom of the Romans

during the feast of the Passover to liberate to the Jews a

prisoner designated by.the people. Pilate tried to persuade

the crowd to designate Jesus, but he was unsuccessful, the

crowd choosing instead Barabbas, a notorious robber and murderer.

The unrelenting ferocity of the mob weakened Pilate,

and eventually he turned Jesus over to be crucified, in spite.

of the fact that this was in flagrant disregard of Roman law,

which provided that the idle clamor of, the populace should

not be regarded if they called for the deathof an innocent

man.

Having thus condemned Jesus, Pilate took a basin of

water and washed his hands before the multitude, saying:

"I am innocent of the blood of this just

.person: see ye to it." (Record Matthew 27:24)

Thus closes the darkest chapter in judicial adminis-

tration. Two of the most enlightened systems of -law that
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have yet existed were prostituted to bring about the destruction

of the most innocent man who ever lived.

To sum up, it is obvious that Jesus was judged before

he was tried. He was charged with and tried for three separate

and distinct crimes. The Sanhedrin illegally convicted him

of blasphemy; Pilate refused to recognize that proceeding. "

Pilate twice acquitted him of the charge of treason.

He was tried with sedition before both Pilate and Herod, but

was acquitted by each. Yet Jesus of Nazareth was executed

under the pretense that he had been found guilty of treason.

Threatened with widespread civil disorder and possible

danger to the.security of his lofty position, Pilate found

crucifixion the cheapest way out.

When noonday of Friday, the 7th of April, A.D. 33, had

come and gone, Jesus of Nazareth had been crucified.

The record clearly shows that you as an appellate

court are entitled and should render a judgment reversing this

gross miscarriage of justice. Nevertheless, counsel recog-

nizes that all you can now do is to follow the teaching of'

.. Jesus as he gave these parting words of those who had brought

about his death, (Record Luke 23:34), and I quote:

"Father, forgive them; for they know not

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what they do."

THE END.

.NOTE BY C.
"The Trial
of Florida

H. SMITH The foregoing speech was adapted from
of Jesus" by Judge William A. Herin in 7 University
Law Review 47, published in 1954.

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SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 1

VOLUME I

-,!

It is my assignment today to introduce to you

one of the most dynamic political personalities that our

great state has ever known. As I am a long-time Holland

Democrat, this is a subject which I must handle like two

porcupines making love very cautiously.

Claude Kirk first entered Florida politics in

1964. Having just retired from a successful business

venture, and being a conservative by political faith, he

decided to take on the establishment in Florida. The

establishment as he saw it was the then senior United

States Senator from Florida. The newspapers of this state

on June 12, 1964, carried this item, and I quote:

"Claude R. Kirk, Jr., an unknown but

apparently daring young Republican, who

is seeking to wrestle the senatorship

from incumbent Spessard Holland, is

quite an amusing fellow. He has labeled

Senator Holland 'a liberal'."

Claude Kirk campaigned vigorously, but when the

election returns came in, the establishment, made up of

Holland liberals, had accumulated 65% of the votes. So

our liberal senior Senator went back to Washington, and

our energetic young speaker of today learned that you

can't make an orange into a grapefruit just by calling

it a grapefruit.

Claude Kirk then looked around for more of the

establishment to attack, and he started the preparation

of documents which he called by the colorful and imaginative

title of "white papers". In 1966, he took on the establish-

ment again, and after election battles involving the then

Governor of Florida, Haydon Burns, and the then Mayor of

Miami, Robert King High, Claude Kirk became the first

Republican Governor of Florida in almost 100 years.

As a Holland "liberal", this surprising election

result occasioned me some problem. At that time, I was, and

had been, engaged in an effort to modernize the State

Constitution. In order to re-establish my failing lines

of communication into the Office of the new Governor, I

hit upon the idea, which for some reason seemed highly

acceptable to our speaker today, of permitting the Governor

of Florida to run for re-election. That provision was

ultimately incorporated into our new Constitution, and I

can assure you that my lines of communication with the

Governor's office ever since have been wide open, cordial

and friendly. Sad to say, however, the friendly relations

which I then had with many other groups have deteriorated

ever since that day. In fact, I have even come to believe

that there are people in Florida who would not like our

speaker today to have an opportunity to submit his record

as Governor to the people again for ratification or rejection.

Among those whom I believe might feel that way are:

(1) the State Cabinet of Rkanx Florida; (2) the Manatee

and Volusia Counties School Boards; (3) Rap Brown; (4) Federal

Judges in general; (5) Governor George Wallace; (6) men who

own family drug stores; (7) Tiny Tim; and (8) members of

the Florida Legislature.

The Governor's role in the school busing situation

has been the subject of much comment among lawyers. The

Governor contends that he has proceeded within the system

and within the exercise of what he deems to be his Constitu-

tional prerogatives. In Manatee County, for example, the

Governor suspended the School Board to prevent the Board

from implementing a plan involving forced busing. This

action placed the Governor and the State of Florida in a

position where its actions were in conflict with those

taken by the Federal Court. It seems to me that the

important thing to recognize is that the Governor has

constantly maintained that these issues must be resolved by

the courts, and that the actions which he took have now

placed the issues q squarely before the Fifth Circuit of

Appeals.

During the tenure of Claude Kirk as Governor of

Florida, there have been many changes made in the structure

of our State Government. We now have a new Constitution with

annual sessions of the Legislature; we have a reorganized

executive branch which promises to bring more efficiency

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and economy to state government. We have made remarkable

and significant changes in law enforcement, and to a lesser

degree in our educational structure. Florida is at the

forefront of all states in developing sound programs for

the preservation and enhancement of our environment and

for the protection of consumers. Yet with all of these

accomplishments, during the administration of Governor

Kirk, we have had no new taxes "yet".

Our speaker today has gone about being Governor

of Florida in the most intelligent way possible. He doesn't

just stay in the office, but he gets out where the action

is; he talks to the people, including students; he seeks

information wherever he can get it. While I cannot prove

it, I suspect that he regularly and frequently consults

on the multi-problems of state government with the only

two living Governors of Florida who reside in Tallahassee -

the Honorable Millard Caldwell and the Honorable LeRoy

Collins. While, as I state, I definitely cannot prove

that, I do suggest to you that he must, as there is no other

rational explanation of why he acts like one of them on one

day and like the other on the next.

Your Excellency, it is great to have you here

today at the 2S 0 ARNR Annual Convention of The

Florida Bar. We have enjoyed a little fun with you, but

I want to assure you that you have one characteristic,

one attribute, one definite plus, that is shared by few

other people who hold high public office. I personally

like you very much.
-4-

It is my great honor to present to you the

distinguished Governor of Florida, Claude Roy Kirk, Jr.

-5-

It is my assignment today to introduce to you

one of the most dynamic political personalities that our

great state has ever known. As I am a long-time Holland

Democrat, this is a subject which I must handle like two

porcupines making love very cautiously.

Claude Kirk first entered Florida politics in

1964. Having just retired from a successful business

venture, and being a conservative by political faith, he

decided to take on the establishment in Florida. The

establishment as he saw it was the then senior United

States Senator from Florida. The newspapers of this state

on June 12, 1964, carried this item, and I quote:

"Claude R. Kirk, Jr., an unknown but

apparently daring young Republican, who

is seeking to wrestle the senatorship

from incumbent Spessard Holland, is

quite an amusing fellow. He has labeled

Senator Holland 'a liberal'."

Claude Kirk campaigned vigorously, but when the

election returns came in, the establishment, made up of

Holland liberals, had accumulated 65% of the votes. So

our liberal senior Senator went back to Washington, and

our energetic young speaker of today learned that you

can't make an orange into a grapefruit just by calling

it a grapefruit.

Claude Kirk then looked around for more of the

establishment to attack, and he started the preparation

of documents which he called by the colorful and imaginative

title of "white papers". In 1966, he took on the establish-

ment again, and after election battles involving the then

Governor of Florida, Haydon Burns, and the then Mayor of

Miami, Robert King High, Claude Kirk became the first

Republican Governor of Florida in almost 100 years.

As a Holland "liberal", this surprising election

result occasioned me some problem. At that time, I was, and

had been, engaged in an effort to modernize the State

Constitution. In order to re-establish my failing lines

of communication into the Office of the new Governor, I

hit upon the idea, which for some reason seemed highly

acceptable to our speaker today, of permitting the Governor

of Florida to run for re-election. That provision was

ultimately incorporated into our new Constitution, and I

can assure you that my lines of communication with the

Governor's office ever. since have been wide open, cordial

and friendly. Sad to say, however, the friendly relations

which I then had with many other groups have deteriorated

ever since that day. In fact, I have even come to believe

that there are people in Florida who would not like our

speaker today to have an opportunity to submit his record

as Governor to the people again for ratification or rejection.

-2-

Among those whom I believe might feel that way are:

(1) the State Cabinet of Rksaxi Florida; (2) the Manatee

and Volusia Counties School Boards; (3) Rap Brown; (4) Federal

Judges in general; (5) Governor George Wallace; (6) men who

own family drug stores; (7) Tiny Tim; and (8) members of

the Florida Legislature.

The Governor's role in the school busing situation

has been the subject of much comment among lawyers. The

Governor contends that he has proceeded within the system

and within the exercise of what he deems to be his Constitu-

tional prerogatives. In Manatee County, for example, the

Governor suspended the School Board to prevent the Board

from implementing a plan involving forced busing. This

action placed the Governor and the State of Florida in a

position where its actions were in conflict with those

taken by the Federal Court. It seems to me that the

important thing to recognize is that the Governor has

constantly maintained that these issues must be resolved by

the courts, and that the actions which he took have now

placed the issues q squarely before the Fifth Circuit of

Appeals.

During the tenure of Claude Kirk as Governor of

Florida, there have been many changes made in the structure

of our State Government. We now have a new Constitution with

annual sessions of the Legislature; we have a reorganized

executive branch which promises to bring more efficiency

-3-

and economy to state government. We have made remarkable

and significant changes in law enforcement, and to a lesser

degree in our educational structure. Florida is at the

forefront of all states in developing sound programs for

the preservation and enhancement of our environment and

for the protection of consumers. Yet with all of these

accomplishments, during the administration of Governor

Kirk, we have had no new taxes "yet".

Our speaker today has gone about being Governor

of Florida in the most intelligent way possible. He doesn't

just stay in the office, but he gets out where the action

is; he talks to the people, including students; he seeks

information wherever he can get it. While I cannot prove

it, I suspect that he regularly and frequently consults

on the multi-problems of state government with the only

two living Governors of Florida who reside in Tallahassee -

the Honorable Millard Caldwell and the Honorable LeRoy

Collins. While, as I state, I definitely cannot prove

that, I do suggest to you that he must, as there is no other

rational explanation of why he acts like one of them on one

day and like the other on the next.

Your Excellency, it is great to have you here

today at the 0 -A A xsm Annual Convention of The

Florida Bar. We have enjoyed a little fun with you, but

I want to assure you that you have one characteristic,

one attribute, one definite plus, that is shared by few

other people who hold high public office. I personally

like you very much.
-4-

It is my great honor to present to you the

distinguished Governor of Florida, Claude Roy Kirk, Jr.

-5-

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 2

VOLUME I

OPEN SPECIALIZATION SHOULD STATE
AND LOCAL BAR ASSOCIATIONS TAKE A POSITION?

CHESTERFIELD SMITH
LAKELAND, FLORIDA

Although our ever-expanding society makes the

problem solving needs of lawyers' clients increasingly

more complex, most lawyers still at least pay lip

service to the obsolete myth that a lawyer can be a

jack of all legal trades. No modern lawyer can validly

purport to act with competence throughout the entire

spectrum of legal problems, and most lawyers now recog-

nize that fact.

At least some degree of specialization is an

existing necessity of modern law practice. De facto

specialization will continue to develop, regardless

of the position thereon which might be taken by the

organized bar. I believe that this inevitable develop-

ment of legal specialization leaves state bar associa-

tions with no alternative except to immediately take

a forthright position in favor of open but regulated

specialization.

While the regulation and certification of

lawyers to engage in specialized practice has been the

subject of substantial debate in recent times, the

organized bar really has only three choices it can

make:

First, everything can be left to fate, letting

the present trend continue to its ultimate destiny.

This I personally have rejected, as I do not believe

that lawyers can look the other way if a serious struc-

tural deficiency exists in the legal profession, and I

believe that it does.

Second, the spread of specialization can be

discouraged. Again, it is my personal judgment that the

existing trend cannot be reversed, and if tried, I fore-

see that the result will be disastrous. The public will

inevitably turn elsewhere for expertness.

Third, specialization and legal proficiency

can be wholeheartedly encouraged by so channelling it

as to preserve the traditional concepts which have made

the legal profession unique. Specialization can be

fitted into our existing ethical concepts without

radical change, as I will demonstrate.

The organized bar is properly subject to

criticism for not recognizing and certifying special

proficiency based upon competence, education, skill,

and experience in particular fields of the practice

of law. Until now, the legal profession has relied

upon the education received in law school to insure

-2-

competency on the part of lawyers. Lawyers have been

considered competent if they have completed their course

of study in an accredited law school and passed a

general state bar examination. This is a lower standard

of service than a client should expect from his lawyer.

Certainly, the traditional belief that any

good lawyer given sufficient time can handle any type

of legal problem should be reanalyzed, at least from

the standpoint of our clients. Even if it be a true

assumption, which I doubt, I suggest it to be both

unethical and improper for a lawyer to put his client

to the expense of paying him for the time essential

for the proper discharge of the entrusted responsibility,

when there are lawyers already proficient in handling

such matters who could perform the same service at

less cost.

Under our present system, lawyers who do in

fact specialize are of course only self-proclaimed

specialists. There is no certification or regulatory

procedure. A lawyer who calls himself a specialist in

one field of law may or may not have an expertise and

competence therein.

If a lawyer is to specialize and be an expert

in one field, it is hardly arguable that the organized

-3-

bar should require a minimum competence from him. A

certification procedure for those lawyers who do specialize

must therefore be promptly devised; it is long overdue.

The only alternative is a continuation of the existing

wholly unregulated specialization. This the general

public will not and should not tolerate.

In advocating the case for regulated speciali-

zation, I readily concede that there are numerous pro-

blems, some real and some imagined. In resolving those

problems, the issue is not whether we will have speciali-

zation. Specialization is already upon us, and it will

inevitably increase. The sole and only issue is

whether the legal profession will have unregulated

specialization or whether the legal profession will

have regulated specialization.

Many general practitioners fear that they will

lose clients to a certified specialist. If the general

practitioner, recognizing his limitation, is in fact

now referring specialized problems to an unregulated

specialist, would not the loss-of-client problem be

more effectively resolved if the bar faced it and

attempted a solution? If the general practitioner, in

an attempt to solve the loss-of-client problem, is

attempting to deal with specialized legal problems

-4-

that are beyond his qualifications, the problem for

the bar is even more serious, and the need for regulation

of specialization is even more pressing.

The organized bar must decide whether it

will take affirmative and positive action to deal

with the significant problems which legal specializa-

tion creates, or whether it will continue to drift

along under the myth of the omnicompetent general

practitioner.

Certainly, the obstacles arising from the

recognition and regulation of legal specialists through

official certification are not to be casually brushed

aside. Such questions as what is to be the certifying

authority, what standards are to be established, and

what should be done about existing specialists for whom

it might be an unreasonable burden to impose the same

strict certification requirements, are legitimate areas

of concern and must be given detailed attention and

study. To advocate the case for regulated specializa-

tion is not to deny that there are major obstacles to

its effective implementation, and that significant

changes must be made in the way that many lawyers have

been doing things. Is this not the case with any change?

Certainly we cannot assume that our problems will dis-

-5-

appear if they are simply ignored.

Current legal publications, through articles,

editorials and comments, demonstrate the increasing

concern of the legal profession with the subject of

specialization. The bars of several states have

directed the governing boards of their associations to

prepare plans for the recognition and certification of

specialists in the law practice. The State Bar of

California, the Oregon State Bar, the Michigan State

Bar, the Colorado Bar, The Virginia Bar, the New Jersey

Bar, and The Florida Bar all have committees working on

this very project.

It is not my purpose here in outlining the

nationwide interest in specialization to propose a

specific plan or scheme for the recognition and certi-

fication of specialists in the law practice. My purpose

is to urge that some plan of recognition and certifi-

cation of specialists by state bar associations is

immediately needed to improve and increase the availa-

bility of legal services to the general public, and that

state bar associations must become involved with the

issue. The continued failure of the organized bar to

convert the existing de facto specialization of lawyers

into a regulated and publicized system is a substantial

-6-

disservice both to lawyers and to the public.

The fact that the power to regulate the legal

profession now exists only at the state level compels me

to believe that state level regulation of specialization

is the correct and only way for this desirable reform

to be achieved. State participation certainly is a

necessary and obvious ingredient of any acceptable

plan.

At the same time, I do believe that fifty (50)

different systems of specialization in the fifty (50)

different states of the United States would create an

undesirable situation, serving neither the public nor

the profession. Obviously, a model code for the recog-

nition and certification of specialists in the legal

profession should be drafted at the national level for

adoption at the state level. In this way, a substantial

degree of uniformity among the systems so adopted could

ultimately be achieved.

If uniform standards for certification of

specialists should be generally adopted in the various

states, most of the demands for a national system of

certification of specialists would be obviated. Certainly,

the quality of the legal specialists certified should

be as uniform on a nationwide basis as practical, just

-7-

as it is desirable that the standards of initial

admission of lawyers to practice throughout the states

be uniform. But a national standard of competence for

specialists certainly is of no more importance than a

national standard for the original admission of lawyers

to practice.

Throughout the fifty states, the standards

for legal education and admission and for legal conduct

and discipline are now covered in only two ways by

either state court rules or by state statutes. There

is no power to force uniform standards on the states by

a national authority. Before we can achieve a uniform

system of certifying and regulating legal specialists,

revisions of necessity must therefore be made in court

rules or statutes in each of our states.

Preparation by the several states of a workable

and acceptable plan for the recognition, certification

and regulation of legal specialists will not be an easy

task. Consideration of graduate study, experience and

demonstrated capacity, and examinations by specialty

boards must all be fully considered as appropriate

qualifications for a specialization certificate. A

recognition of specialization at the same time must not

disregard the importance of a broad and jurisprudential

legal education. Specialization must be the result of

-8-

both experience and particularized training and study.

It may be that a new Canon of Ethics should

be enacted to the effect that a lawyer should not

knowingly assume legal representation beyond his then

existing competence, or that he cannot then perform

without unreasonable risk or expense to the client.

A Canon may be necessary prohibiting a certified specialist

from performing legal services for a referred client

beyond the matter referred, and that the specialist

should use his best efforts to see that the client

returns thereafter to the referring lawyer. Considera-

tion should also be given to the limitations upon practice

of a certified specialist. A method of dignified notice

to the bar and the public of legal specialization and

limitation of practice may be desirable.

Variations in approach by the several state

bar associations are not objectionable, at least initially.

One of the positive advantages of heterogeneity is that

it provides an opportunity for trying out new and different

methods.

It is somewhat ironic that the lawyers who

seem to object most to recognition and regulation of

specialization advance arguments concerning the sup-

posed harmful effect upon the sole practitioner and the

-9-

small partnerships in rural areas. The big firm lawyer

already has the benefits of specialized practice, and

a system of regulation of specialists obviously will

not benefit him to the extent that it will help the

individual practitioners or the members of a small law

firm. Official recognition of specialization and the

adoption of appropriate regulatory measures would not

materially aid the lawyers in the large firms who

presently enjoy the existing de facto specialization -

and who perhaps enjoy the absence of certification and

regulation.

One of the principal reasons for the success

of large law firms is that they have had no difficulty

in communicating to the public that they offer specialized

services and that the collective abilities of their

lawyers enable them to be specialists in every field.

The official recognition of specialists would enable

the public to learn of specialization by certified

sole practitioners, or by lawyers in the small firms.

Certainly it would aid those lawyers in informing the

public that specialized services are also available

from them, as well as from larger law firms. I believe

that it will enable the small practitioner more effec-

tively to compete with the large law firms.

-10-

It seems to me that the sole practitioner

needs a goal of special competence, an educational

program directed to that goal, and a shingle to hang

on his wall when he gets there. He can then point with

pardonable pride, demonstrating that he has measured

up to the special requirements set by his brethren in

the legal profession.

In conclusion, I submit that The Florida Bar

should promptly take a position on open specialization,

and that that position should be that the best interests

of both the public and the legal profession will be

served by no longer permitting the unregulated develop-

ment of legal specialists. The time for regulation of

legal specialists is now. The place to begin is with

The Florida Bar.

-11-

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 3

VOLUME I

OPEN SPECIALIZATION SHOULD STATE
AND LCCAL BAR ASSOCIATIONS TAKE A POSITION?

CHESTERFIELD SMITH
LAKELAND, FLORIDA

Although our ever-expanding society makes the problem

solving needs of lawyers' clients increasingly more complex,

most lawyers still at least pay lip service to the obsolete myth

that a lawyer can be a jack of all legal trades.

No modern lawyer can validly purport to act with

competence throughout the entire spectrum of legal problems,

and most lawyers now from a practical standpoint recognize

that fact.

At least some degree of specialization is an existing

necessity of modern law practice. De facto specialization as it

now exists will continue to develop, regardless of the position

thereon which might be taken by the organized bar; this inevitable

development of legal specialization leaves state bar associations

with no alternative except to immediately take a forthright

position in favor of open but regulated specialization.

While the regulation and certification of lawyers to

engage in specialized practice has been the subject of substantial

comment among lawyers in recent times, the organized bar really

has only three choices it can make:

First, we can leave everything to fate, letting the

present trend continue to its ultimate destiny. This I personally

have rejected, as I do not believe that lawyers can look the other

way if a serious structural deficiency exists in the legal pro-

fession, and I believe that it does.

Second, we can discourage the spread of specialization.

Again, it is my personal judgment that we cannot reverse the existing

trend, and if we try, I foresee that the result will be disastrous.

The public will inevitably turn elsewhere for expertness.

Third, we can wholeheartedly encourage specialization

and legal proficiency by channelling it so as to preserve the

traditional concepts which have made the legal profession unique.

It can be fitted into our existing ethical concepts without

radical change.

This is the alternative that I now advocate.

Even though many lawyers today know that the law is

too involved for any one person to master all of its fields,

some lawyers still refuse to acknowledge their deficiencies in

a specialized field of law. Some lawyers are still accepting

professional employment they are not competent to give. When

such action on the part of the few comes to the attention of our

clients, it brings disfavor on the legal profession. I submit

that the organized bar is properly subject to criticism, for not

recognizing and certifying special proficiency based upon compe-

tence, education, skill, and experience in particular fields

-2-

of the practice of law.

Until now, the legal profession has relied upon the

education received in law school to insure competency on the

part of lawyers. Lawyers are considered competent if they have

completed their course of study in an accredited law school and

passed a general state bar examination.

This is a lower standard of service than a client

should expect from his lawyer. I believe it wrong that the legal

profession has heretofore refused to educate and certify specialists,

when almost all lawyers admit that additional training, examination,

and internship would secure higher levels of competence.

Certainly, the traditional belief that any good lawyer

given sufficient time can handle any type of legal problem

should be reanalyzed from the standpoint of our clients. Even

if it be a true assumption, which I doubt, I suggest it to be

both unethical and improper for a lawyer to put his client to the

expense of paying him for the time essential for the proper dis-

charge of the entrusted responsibility, when there are lawyers

already proficient in handling such matters who could perform

the same service at less cost.

Under our present system, lawyers are of course only

self-proclaimed specialists. There is no certification or regu-

latory procedure. A lawyer who calls himself a specialist in

one field of law may or may not have an expertise and competence

-3-

__ _ _I_~_I I____ I~

therein.

If a lawyer is in truth and fact to specialize and be

an expert in one field of law, it is hardly arguable that the

organized bar should require a minimum competence from him.

A certification procedure for specialists must therefore be

promptly devised; it is long overdue. The only alternative is

a continuation of the existing wholly unregulated specialization.

This the general public will not and should not tolerate.

In advocating the case for regulated specialization,

I readily concede that there are numerous problems, some real

and some imagined. In resolving those problems, the issue is

not whether we will have specialization. Specialization is already

upon us, and it will inevitably increase. The sole and only

issue is whether the legal profession will have unregulated

specialization or whether the legal profession will have regulated

specialization.

Many general practitioners fear that they will lose

clients to a specialist. If the general practitioner, recognizing

his limitation, is in fact now referring specialized problems

to an unregulated specialist, would not the loss-of-client pro-

blem be more effectively resolved if the bar faced it and attempted

a solution? If the general practitioner, in an attempt to solve

the loss-of-client problem, is attempting to deal with specialized

legal problems that are beyond his qualifications, the problem

for the bar is even more serious, and the need for regulation of

-4-

specialization is even more pressing.

The decision which must now be made is whether the

organized bar should take affirmative and positive action to

recognize specialization and deal with the problems it creates,

rather than continue to drift along under the myth of the omni-

competent general practitioner. The significant problems that

are raised by the opponents of officially recognized speciali-

zation are largely problems inherent in unregulated specialized

law practice, as it now exists, rather than in the official

recognition thereof. I therefore believe that the case for

regulated specialization is irrefutable.

Certainly, I do not contend that the obstacles arising

from the recognition and regulation of specialists through

official certification are to be casually brushed aside. Such

questions as what is to be the certifying authority, what

standards are to be established, and what should be done about

existing specialists for whom it might be an unreasonable burden

to impose the same strict certification requirements, are legiti-

mate areas of concern and must be given detailed attention and

study. To advocate the case for regulated specialization is not

to deny that there are major obstacles to its effective imple-

mentation, and that significant changes must be made in the way

that many lawyers have been doing things. .Is this not the case

with any change? Certainly we cannot bury our heads in the sand
V

and assume that our problems will disappear if they are simply

ignored.

Legal publications through articles, editorials and

comments demonstrate the increasing concern of the profession

with the subject of specialization. The bars of several states

have directed the governing boards of their associations to

prepare plans for the recognition and certification of specia-

lists in the law practice. The Florida Bar, the Colorado Bar,

and the New Jersey Bar have committees working on this very

project. The Junior Section of the Michigan State Bar is embarked

on a comparable study. The President of the Virginia Bar pro-

poses to make specialization a matter of special concern for his

administration.

In June of 1966 the State Bar of California created

a committee on specialization. On September 21, 1966, that state

bar as part of its annual meeting conducted a full day of seminar

and discussion on the subject of specialization. Subsequently,

the Board of Governors clarified the scope and function of the

committee in the following resolution:

RESOLVED, THAT THE STATEMENT OF THE PURPOSE
AND FUNCTIONS OF THE COMMITTEE ON SPECIALI-
ZATION ADOPTED BY THE BOARD AT ITS JUNE,
1966 MEETING HEREBY IS AMPLIFIED TO MAKE
IT CLEAR TO THE COMMITTEE THAT THE BOARD
REQUESTS IT TO PREPARE AND SUBMIT A PLAN
WHEREBY MEMBERS OF THE STATE BAR MAY SEEK
TO BECOME CERTIFIED AS SPECIALISTS, SUCH
PLAN TO INCLUDE THE METHOD OF CERTIFICATION,
A DESIGNATION OF SPECIALTIES TO BE SO CER-

-6-

TIFIED, LIMITATIONS UPON THE PRACTICE OF
LAW BY SUCH SPECIALISTS, QUALIFICATIONS TO
BE MET AS A PREREQUISITE TO SUCH CERTI-
FICATION AND THE MEANS BY WHICH SUCH
SPECIALISTS PROPERLY MAY MAKE KNOWN TO
THE BAR AND THE PUBLIC THE FACT OF SUCH
CERTIFICATION.

At about the same time, the Oregon State Bar Committee

on the Future of the Legal Profession submitted the following

recommendations to the bar of that state:

Specialization within the legal profession

6. That the Board of Governors of the Oregon
State Bar establish rules and regulations
whereby areas or branches of the law may
be declared areas of specialization.

7. That Rule 2 of the Rules of Professional
Conduct of the Oregon State Bar be amended,
so that a specialist can advise the public
of his specialty, subject to such safe-
guards as the Board of Governors may
establish.

8. That Rule 20 of the Rules of Professional
Conduct of the Oregon State Bar be amended,
so as to permit sharing of fees between
lawyers, but at no extra expense to the
client.

9. That a rule of professional conduct be
adopted to provide that any lawyer to
whom a matter has been referred by another
member of the bar shall use his best
efforts to assure that the attorney-client
relationship between the client and the
referring attorney be left undistrubed.

At its annual meeting in general assembly convened, the Oregon

State Bar amended those recommendations to direct its Board of

Governors to establish rules and regulations on the subject

-7-

of specialization which should come before the general membership

of that state bar in October of this year.

A report appearing in the New York Times of February

9, 1967, states that a committee of the American Trial Lawyers

Association has recommended to the Board of Governors of that

association the creation of a board to certify personal injury

trial lawyers as specialists. That proposal contemplates that

in order to be certified, such a specialist should have at

least eight years of practice, must have participated in the

trial of at least twenty (20) personal injury cases and shall

have attained passing scores on written and oral examinations.

That association's interest in the subject is confirmed by Pre-

sident Al Cone's column in the February, 1967 issue of its

"News Letter".

The Ohio State Bar in its 1964 annual legal essay

contest permitted participants to select from among three sub-

jects, one of which was specialization. The top three prizes

were won by authors writing on the subject of specialization.

Their essays, each advocating regulation and certification of

specialization, are published in the May 25, June 29 and August

10, 1964 issues of "The Ohio Bar".

One of those authors, along with Messrs. Warren S.

Resh and Philip S. Habermann in their article "A Practical Answer

to Specialization" appearing in the December, 1965 issue of the

"Wisconsin Bar Bulletin", suggests that the bar take at least

the first step of permitting lawyers to limit their practice to

certain subjects or areas of the law and so to advise the public.

The probable future expansion of specialization in the

practice of law is predicted in "American Lawyers, 1976: A

Clouded Crystal Ball" 52 American Bar Association Journal 737,

August, 1966.

It is not my purpose here in outlining the nationwide

interest in specialization to propose a specific plan or scheme

for the recognition and certification of specialists in the

law practice. My purpose is to urge that some plan of recognition

and certification of specialists by state bar associations is

immediately needed to improve and increase the availability of

legal services to the general public, and that state bar associa-

tions must become involved with the issue. The continued failure

of the organized bar to convert the existing de facto speciali-

zation of lawyers into a regulated and publicized system is a

substantial disservice both to lawyers and to the public. In

my own judgment it is a continuing disgrace to our profession.

I do recognize that some areas of specialized practice

lie wholly within the area of federal law and thus could be the

subject of potential national certification. Others, just as

clearly, lie within the substantive law whether originating in

statutes or case law or both of the several states of the union.

-9-

Thus, any system for recognizing and certifying specialists

should of course consider the possibility of both types of

certification.

However, the fact that the power to regulate the legal

profession now exists only at the state level compels me to believe

that state level regulation of specialization is the correct and

only way for this desirable reform to be achieved. State parti-

cipation certainly is a necessary and obvious ingredient of any

acceptable plan.

At the same time, I do believe that fifty (50) dif-

ferent systems of specialization in the fifty (50) different

states of the United States would create a chaotic situation

serving neither the public nor the profession. The American Bar

Association could render a signal service by causing a model

code or rule for the recognition and certification of specialists

in the legal profession to be drafted for adoption at the state

level. In this way, a substantial degree of uniformity among

the systems so adopted could be achieved.

If uniform standards for certification of specialists

should be generally adopted in the United States, most of the

demands for a national system of certification of specialists

would be obviated. The American Bar Association of course has

no power to force a nationwide standard on the states; it has

merely the intangible appeal to public and professional opinion.

-10-

At present, the standards for legal education and

admission and for legal conduct and proficiency are covered in

two ways state court rules and state statutes. To adopt a

system of certifying and regulating legal specialists, revisions

will be necessary in court rules or statutes in each of our states.

By the adoption of uniform standards, the American Bar Association

will be leading the way to making an expert lawyer more readily

available to members of the general public who now need legal

services but who have no satisfactory means of determining if

they have selected a lawyer particularly well qualified to

render the desired service.

Preparation by the several states of a workable and

acceptable plan for the recognition, certification and regula-

tion of legal specialists will not be an easy task. Consideration

of graduate study, experience and demonstrated capacity, and

examinations by specialty boards must all be fully considered as

appropriate qualifications for a specialization certificate. A

recognition of specialization at the same time must not disregard

the importance of a bread and jurisprudential legal education.

Specialization must be the result of experience and particularized

training and study.

It may be that a new Canon of Ethics should be enacted

to the effect that a lawyer should not knowingly assume legal

representation beyond his then existing competence, or that he

11--

cannot then perform without unreasonable risk or expense to the

client. A Canon may be necessary prohibiting a certified

specialist from performing legal services for a referred client

beyond the matter referred, and that the specialist should use

his best efforts to see that the client returned thereafter to

the referring lawyer. Consideration should also be given to the

limitations upon practice of a certified specialist. A method

of dignified notice to the bar and the public of legal speciali-

zation and limitation of practice may be desirable.

Because the states have properly been granted under

our dual sovereignty system the sole responsibility for the

initial admission of lawyers to the practicing bar and for the

imposition of disciplinary sanctions, I am convinced that the

problems of official recognition of specialization can only be

handled at the state bar level.

Variations in approach by the several state bar as-

sociations are not objectionable, at least initially. One of

the positive advantages of heterogeneity is that it provides an

opportunity for trying out new and different methods.

There would of course be general agreement, I am sure,

with the proposition that steps should be taken as soon as possible

to insure that the quality of the legal specialists certified be

as uniform on a nationwide basis as practical, just as it is

desirable that the initial admission to the practice of lawyers

-12-

be uniform. But a national standard of competence for specia-

lists certainly is of no more importance than a national standard

of competence for general practitioners, which is the present

status of all lawyers upon initial admission.

It is somewhat ironic that the lawyers in state bar

associations who seem to object most to recognition and regula-

tion of specialization advance arguments concerning the supposed

harmful effect upon the sole practitioner and the small part-

nerships in rural areas. The big firm lawyer already has the

benefits of specialized practice, and a system of regulation of

specialists obviously will not benefit him to the extent that it

will help the individual practitioners or the members of a small

law firm. Official recognition of specialization and the adoption

of appropriate regulatory measures would not materially aid the

lawyers in the large firms who presently enjoy the existing de

facto specialization and who perhaps enjoy the absence of

certification and regulation. One of the principal reasons for

the success of large law firms is that they have no difficulty in

communicating to the public that they offer specialized services

and that the collective abilities of their lawyers enable them

to be specialists in every field. I believe that the official

recognition of specialists would enable the public to learn of

specialization by certified sole practitioners, or by lawyers in

the small firms. Certainly it would aid those lawyers in informing

-13-

the public that specialized services are also available from

them, as well as from larger law firms. I believe that it will

enable the small practitioner more effectively to compete with

the large law firms.

It seems to me that the sole practitioner needs a goal

of special competence, an educational program directed to that

goal, and a shingle to hang on his wall when he gets there.

He can then point with pardonable pride, demonstrating that he

has measured up to the special requirements set by his brethren

in the legal profession.

The proposals here advanced are not suggested as final

solutions to the problem of specialized legal services. As is

true with other problems of the organized bar, if each of us

individually could develop solutions to the problems affecting

legal specialization without regard to the opinions of other

members of the bar, we could, no doubt, fashion a wonderful

system for the protection of the public and the recognition of

the legitimate interests of all members of the bar. Inasmuch as

there are few groups more democratic than lawyers, with members

fiercely and zealously independent, the realities and practi-

calities must be considered in any plan. The proposals here

suggested are made in the hope that they will induce affirmative

action by lawyers toward recognition and solution of problems

that we, as lawyers, can no longer afford to sweep under the rug.

-14-

State bar associations should promptly take a

position on open specialization. I submit that that position

should be that the best interests of both the public and the

legal profession will be served by no longer permitting the

unregulated development of legal specialists. The time for

regulation of legal specialists is now. The place to begin is

with the state bar.

-15-

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 4

VOLUME I

It is somewhat ironic that the lawyers who seem to

object most to recognition and regulation of specialization

advance arguments concerning the supposed harmful effect upon

the sole practitioner and the small partnerships in rural areas.

The big firm lawyer already has the benefits of specialized

practice. Large law firms in general are not adversely

affected by the failure of the bar to recognize and regulate

specialization, because a large law firm usually has little

difficulty in making the availability of the specialized

services of its individual lawyers collectively known to its

prospective clients. Recognition and regulation of legal

specialization will tend to equate the sole practitioner and

small law firm with the large law firm in also making the

availability of specialized services known to their prospective

clients.

Realistically, one of the principal reasons for the

success of large law firms is that they have had no difficulty

in communicating to the public that they offer specialized

services, and that the collective abilities of their lawyers

enable them to be specialists in every field. The official

recognition of specialists would enable the public to learn

of specialization by certified sole practitioners, or by

lawyers in the small firms. Certainly it would aid those

lawyers in informing the public that specialized legal services

can be made available by general practitioners as well as by

large law firms. I frankly believe that it will enable the

small practitioner more effectively to compete with the large

law firms, and that it may well be the best means available

to insure the ultimate survival of the independent sole

practitioner.

-2-

During our deliberations, the committee considered

model and state plans drafted by both committee members and

by other interested lawyers. The committee rejected several

national plans, and finally concluded that it was not even

willing to recommend that the American Bar Association promul-

gate a model code for use by those states wishing to experiment

until after pilot programs of specialization in the practice

of law have been instituted, and the results thereof evaluated.

However, for the guidance of those states which do

conclude to promulgate pilot plans of their own for regulating

specialization in the law practice, a majority of the committee

concluded that the following minimum provisions should be

encompassed in any plan:

1. Participation therein should be on a completely

voluntary basis.

2. A certified specialist should not retain the re-

ferred client upon completion of the referred matter. He

should not again represent the client without the consent of

the client's lawyers. (See footnote).

3. Certified legal specialists should be permitted

to give appropriate and dignified notice that they are certi-

fied legal specialists, designating the particular fields of

law in which they are so certified.

Footnote: A minority of the committee disagrees with provision 2
and would substitute in lieu thereof the following:
#2. "A certified specialist should, recognizing that
a client has been referred to him for a specific pur-
pose, not take advantage of his position to enlarge
the scope of his representation."

4. Any lawyer, alone or in association with any

other lawyer, should have the right to practice in any field

of the law, even though he is not certified therein; any law-

yer, alone or in association with any other lawyer, should

also have the right to practice in all fields of law, even

though he is certified in a particular field of law.

5. A lawyer may be certified in more than one field

of the law if he meets the standards established therefore.

6. All responsibilities and privileges derived from

the certification as a specialist should be individual and may

not be attributed to or fulfilled by a law firm.

7. Any lawyer may publish in reputable law lists

and legal directories a statement that his practice is confined

to one or more fields of law, whether or not he is certified

as a specialist therein.

8. Appropriate safeguards to insure continued pro-

ficiency as a specialist should be provided.

9. Adequate financing to cover the cost of adminis-

tration should be derived from those who are certified as

specialists.

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 5

VOLUME I

ADDRESS TO NEW ADMITTEES
TO THE FLORIDA BAR

MR. JUSTICE THORNAL, DISTINGUISHED JUDGES, LADIES AND

GENTLEMEN:

AS A SPOKESMAN FOR THE FLORIDA BAR, IT IS MY PRIVILEGE

AND HONOR TO WELCOME YOU AS NEW MEMBERS OF THAT GREAT ORGANIZATION.

FROM PERSONAL EXPERIENCE, I CAN TELL YOU THAT THERE IS

A DEEP SATISFACTION IN BEING A LAWYER. THERE ARE MANY OF US NOW

PRACTICING LAW WHO TRULY CONSIDER IT THE NOBLEST OF PROFESSIONS.

THIS PROFESSION, TO WHICH YOU HAVE JUST BEEN ADMITTED,

IS, I DO BELIEVE, THE MOST DEMANDING FIELD OF ENDEAVOR IN OUR MODERN

SOCIETY.

YET THE REWARDS ARE GREAT.

A LAWYER DAILY IS ENTRUSTED WITH THE PROPERTY, FREEDOM,

AND EVEN THE LIFE OF HIS FELLOW HUMAN BEINGS.

THIS RESPONSIBILITY WHICH IS ENTRUSTED TO HIM SO ROU-

TINELY BY OTHER CITIZENS SETS LAWYERS OFF FROM OTHER PEOPLE. THAT

RESPONSIBILITY MAKES LAWYERS JUST A LITTLE BIT DIFFERENT FROM

OTHER PEOPLE.

THE MONETARY REWARDS OF THE LAWYER ARE ON THE AVERAGE,

SMALL. COMPARATIVE STATISTICS CERTAINLY WAS NOT THE MOTIVATING

INFLUENCE IN YOUR INDIVIDUAL DECISIONS TO ENTER THE LEGAL PRO-

FESSION.

WITHOUT QUESTION, A BUSINESS CAREER WOULD HAVE OFFERED

GREATER FINANCIAL RETURNS. DOCTORS AND DENTISTS BOTH HAVE HIGHER

INCOMES THAN LAWYERS.

YET, I AM CONVINCED THAT LAWYERS CUSTOMARILY WORK FAR

HARDER, FAR LONGER HOURS, EMPLOY FAR GREATER INTELLECTUAL COM-

PECTENCE THAN DO BUSINESS MEN, DOCTORS, DENTISTS, OR ANY OTHER

PROFESSION.

THOSE COMPARATIVE STATISTICS WHICH SHOW THAT THE LAWYER

HAS FALLEN BEHIND THE OTHER PROFESSIONS ECONOMICALLY OF COURSE DO

NOT APPLY TO THAT LAWYER WHO POSSESSES IN AN UNUSUAL DEGREE THOSE

INGREDIENTS NEEDED TO INSURE SUCCESS AS A LAWYER.

THAT MAN SCORNS STATISTICS. HE COULDN'T CARE LESS ABOUT

AVERAGES OR MEDIANS OR MEANS. THAT MAN RECOGNIZES THAT THE PRAC-

TICE OF LAW STILL OFFERS TO HIM AN UNLIMITED OPPORTUNITY FOR

SUBSTANTIAL FINANCIAL SUCCESS, AS WELL AS FOR DISTINGUISHED PRO-

FESSIONAL ACHIEVEMENT. THAT MAN NEVER FORGETS HOW MUCH ROOM THERE

ALWAYS IS AT THE TOP.

WE MUST RECOGNIZE, HOWEVER, THAT IN GENERAL A LAWYER

RECEIVES HIS FULL MEASURE OF COMPENSATION BY REWARDS NOT MONETARY.

HIS REWARD COMES IN KNOWING THAT HE IS HIS OWN MAN WITH

A MARKED DEGREE OF PERSONAL INDEPENDENCE. HE REVELS IN THE TRUST

OF HIS COLLEAGUES AT THE BAR; HE ENJOYS TO THE UPMOST THE STIMULA-

-2-

TION OF INTELLECTUAL ACTIVITY; HE WRAPS AROUND HIMSELF WITH PRIDE

A FEELING OF WELL-BEING DERIVED FROM A REPUTATION OF RELIABILITY

AND HONESTY.

THE LAWYER COMES IN CONTACT WITH NEW AND UNUSUAL EXPERI-

ENCES AND PEOPLE ALMOST EVERY DAY. HIS ATTITUDE TOWARD THEM IS

PARAMOUNT TO ACHIEVING SATISFACTION IN HIS WORK.

THE WORK OF THE LAWYER SURROUNDS ALL ACTIVITIES WHICH

MAN PURSUES EVERYWHERE. IT IS NEVER STILL, BUT IS ALWAYS GROWING

AND CHANGING TO FIT THE NEEDS OF MAN AS NEW CIRCUMSTANCES AND NEW

CONDITIONS ARISE.

GROWING POPULATIONS AND CHANGING CONDITIONS NECESSARILY

GIVE RISE TO SOCIAL AND ECONOMIC COMPLEXES THAT REQUIRE THOSE WHO

MUST COPE THEREWITH TO POSSESS BOTH WISDOM AND DISCRETION.

BECAUSE OF THEIR FUNDAMENTAL TRAINING AND BELIEFS, THE

BAR IS USUALLY THE FIRST SECTOR OF THE POPULATION TO COMPREHEND

BOTH THE PROBLEM AND THE SOLUTION.

A LAWYER KNOWS, HE HAS TO KNOW, HE HAS TO BELIEVE THAT

THE RULE OF LAW IS INDISPENSABLE TO CIVILIZATION, IS INDISPENSABLE

TO THE PROGRESS OF MANKIND.

THE SUPREME COURT OF FLORIDA, AT THE TIME OF THE INTE-

GRATION OF THE BAR IN 1950, TOLD THE LAWYERS OF FLORIDA THAT THEY

COLLECTIVELY HAVE A RESPONSIBILITY TO THE PUBLIC THAT IS UNIQUE

AND DIFFERENT IN DEGREE FROM THAT WHICH IS EXACTED FROM THE MEMBERS

-3-

OF ANY OF THE OTHER PROFESSIONS.

IN THAT OPINION, OUR COURT WENT ON TO POINT OUT THAT AN

INTEGRATED BAR PROVIDES THE BEST MEANS YET DEVISED TO ENLIST THE

FULL MANPOWER OF THE BAR IN THE EXECUTION OF ITS DUTY TO THE

PROFESSION AND TO THE PUBLIC. THE COURT THEN CHALLENGED THE

FLORIDA BAR, WHICH IT HAD JUST CREATED, BOLDLY AND COURAGEOUSLY

TO DISCHARGE ITS RESPONSIBILITIES.

DURING THE gf5ETN YEARS WHICH HAVE INTERVENED, THE

FLORIDA BAR HAS RECEIVED SPECIAL COMMENDATION FOR ACHIEVEMENTS OF

MERIT FROM THE AMERICAN BAR ASSOCIATION ON TEN DIFFERENT OCCASIONS;
TA'rc c-
AND IN THIS BRIEF SPAN OF TIME, THE FLORIDA BAR HAS =SCE BEEN

RECOGNIZED BY THE AMERICAN BAR ASSOCIATION AS THE OUTSTANDING BAR

ORGANIZATION IN THE NATION.

IN 1950, WHEN THE FLORIDA BAR WAS CREATED, THERE WAS

LESS THAN 3,000 LAWYERS IN THIS STATE. WITH THE ADMISSIONS TODAY,
0,Soo
THERE ARE NOW APPROXIMATELY S,.0 MEMBERS.

IT IS A GREAT ORGANIZATION TO WHICH YOU HAVE JUST BEEN

ADMITTED.

WHILE ITS RECORD IS A SYMBOL OF ACHIEVEMENT OF WHICH

ALL LAWYERS CAN BE PROUD, IT IS FAR MORE IMPORTANT THAT EACH OF

YOU, THAT EACH LAWYER IN THE STATE OF FLORIDA, BE HIMSELF, INDI-

VIDUALLY, A CREDIT TO THE FLORIDA BAR, AND TO HIS COLLEAGUES WITH

-4-

WHOM HE SHARES MEMBERSHIP THEREIN.

IF EACH OF YOU ADMITTED TODAY TO MEMBERSHIP IN THE FLORIDA

BAR WILL ASSUME AND DISCHARGE YOUR SHARE OF OUR TOTAL LAWYER

RESPONSIBILITY, THERE IS REALLY NO LIMIT TO WHAT THE FLORIDA BAR

CAN ACCOMPLISH IN THE FORESEEABLE FUTURE, BOTH FOR THE PROFESSION

AND FOR THE PUBLIC.

IN CONCLUSION, LET ME CONGRATULATE YOU UPON BECOMING A

LAWYER. LAWYERS ARE FINE PEOPLE, AND YOU WILL ENJOY THROUGHOUT

YOUR LIFE THE OPPORTUNITY OF FRATERNIZING WITH A GROUP BOTH KNOW-

LEDGEABLE AND HONORABLE.

HARRISON TWEED, PRESIDENT OF THE AMERICAN LAW INSTITUTE,

HAS STATED VERY BRIEFLY MY FEELINGS ON THIS OCCASION, HE SAID:

I HAVE A HIGH OPINION OF LAWYERS. WITH ALL

THEIR FAULTS, THEY STACK UP WELL AGAINST THOSE

IN EVERY OTHER OCCUPATION OR PROFESSION. THEY

ARE BETTER TO WORK WITH, OR PLAY WITH, OR FIGHT

WITH OR SOCIALIZE WITH, THAN MOST OTHER VARIETIES

OF MANKIND."

WELCOME TO THAT GROUP, AND WELCOME TO THE FLORIDA BAR.

-5-

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 6

VOLUME I

K
.1' 1:
4

REMARKS OF CHESTERFIELD SMITH

CONCERNING THE PROPOSED AMENDMENT TO THE
AMERICAN BAR ASSOCIATION CONSTITUTION

EGtARDING lMANDAUORY VGE LIMIT
OF70 YEARS OFAGEFOR.
..HOUSEzOF DELEGATES MEMBERSHIP

IT SEEMS TO ME THAT WE, THE MEMBERS OF THE HOUSE OF

DELEGATES, MUST FACE HEAD-ON THE RESPONSIBILITY TO INSURE

THAT WE AS A GOVERNING BODY ARE REPRESENTATIVE AND RESPONSIVE

S ...TOTHE- EEDS ,OF,,THE LEGAL PROFESSION AND, ULTIMATELY, THE

NEEDS OF THE AMERICAN PEOPLE. FOR MANY YEARS, WE HAVE BEEN

FOND OF CALLING OURSELVES AS'AN ASSOCIATION THE

"CONSCIENCE OF THE LEGAL PROFESSION" OR "THE NATIONAL VOICE

OF THE LEGAL PROFESSION". WE HAVE SAID THIS EVEN

THROUGH MOST OF OUR HISTORY OUR ENTIRE MEMBERSHIP
... . . , -, ,,: -. .: , ':, ., ,- . .i . ... ..... .. . . . .; ;!a o

THOUGH

HAS BEEN

-.-.

LESS THAN 50% OF ,THE LA YER-POPULATION IIN AMERICAI, -AVE :

BEEN JUSTIFIED TO SOME DEGREE IN MAKING THESE BOASTS BECAUSE

! .. -OF.THE REPRESENTATIVE NATURE OF THIS HOUSE OF DELEGATES.

T iE. HOUSE OF DELEGATES IS THE POLICY-MAKING BODY THE

GOVERNING BODY -- THE ONLY REAL FORUM FOR MEMBERS OF THE

ERICAN BAR ASSOCIATION. QSO, .ALTHOUGH OUR MEMBERSHIP,. STILL -..

HOVERS SOMEWHERE AROUND 50 TO 55% OF THE LAWYER. POPULATION

;OF AMERICA, WE ARE -- BY VIRTUE OF OUR MEMBERSHIP REQUIREMENTS

IN THE HOUSE OF DELEGATES -- ABLE TO LEGITIMATELY SAY THAT

REPRESENTATIVES OF ORGANIZATIONS OR GROUPS WHICH, IN THEMSELVES,

REPRESENT OVER 98% OF THE LAWYERS-IN AMERICA, VOTE AND

PARTICIPATE IN THllS BODY .

THEREFORE, THE HOUSE OF DELEGATES OF THE AMERICAU BAR
'; i ''' .,._: .,'" -' o ,: : .. ,, : -- : - ,- . : ': .'., -', .o .,= .

ASSOCIATION IS OF MONUMENTAL IMPORTANCE TO THIS ASSOCIATION

AND TO THE LEGAL PROFESSION. IT IS INCUMBENT UPON US TO

S-. CONSTANTLY REEXAMINE OURSELVES TO MAKE SURE THAT WE ARE

PERFORMING CORRECTLY AND THAT WE ARE ORGANIZED PROPERLY TO

MOST EFFECTIVELY DISCHARGE OUR RESPONSIBILITIES TO THE

PROFESSION. I HAVE ALWAYS FELT THAT ANY' ORGANIZATION MUST :

CONTINUALLY ANALYZE ITS GOVERNING BODIES AND, AT PERIODIC
. . -'.;-... .. :. z_ ., .-...,, ,..

INTERVALS, RE-DEFINE PURPOSES AND CRITERIA FOR MEMBERSHIP IN

ORDER TO CONSTANTLY STAY ABREAST OF CHANGING NEEDS AND

REQUIREMENTS OF THE ORGANIZATIONS THEY SERVE.

SO IT IS THAT I INTRODUCE AND SPEAK FOR THIS AMENDMENT

* ' : ' ~"r
'C.

S WHICH WOULD SET A MANDATORY AGE LIMIT OF 70 YEARS UPON

MEMBERS OF THIS DODY, I MAKE THIS RECOMMENDATION FULLY

1'

"0*

'''' '5''

~

.. -i-.- ---

AWARE THAT IT WILL WORK A HARDSHIP AND DISSERVICE ON SOME

INDIVIDUALS, BUT -- IN MY OWN MIND I THINK ALL OF US MUST

CONTINUALLY LOOK TO THE.BETTERMENT OF THE ORGANIZATION AND

TO THE RESPONSIBILITIES THAT WE MUST DISCHARGE WHICH, IN MY

ESTIMATION WILL BE BEST SERVED BY THIS AMENDMENT.

IT: SEEMS TO ME THAT IT ..IS NOW GENERALLY RECOGNIZED

THAT THERE SHOULD BE AN AGE FOR COMPULSORY RETIREMENT FOR

PERSONS IN ALL WALKS OF LIFE. WE ARE ALL AWARE THAT THERE

IS AN AGE FOR MANDATORY COMPULSORY RETIREMENT FOR MOST

OFFICIALS AND PROFESSIONALS IN GOVERNMENT, BUSINESS, AND

NON-PROFIT PRIVATE ORGANIZATIONS. I AM CONVINCED THAT A

COMPULSORY RETIREMENT SYSTEM MAKES IT POSSIBLE TO HAVE AN

ORDERLY TERMINATION/OF SERVICE OF PEOPLE WHO -- ON THE

AVERAGE -- HAVE REACHED AN AGE WHEN THE I R PHYSICAL AND

MENTAL POWERS DO NOT PERMIT THEM TO CARRY A FULL WORKLOAD.

COMPULSORY RETIREMENT, INEVITABLY, WILL WORK ARBITRARILY IN

MANY CASES UNLESS THE AGE OF COMPULSORY RETIREMENT IS FIXED

SO HIGH AS TO DEFEAT ITS PURPOSE. I POINT OUT THAT AGE 70,

AS I PROPOSE,-IS WELL ABOVE MOST VOLUNTARY OR MANDATORY

RETIREMENT AGES INI OUR COUNTRY AND MAY IN ITSELF BE SUBJECT

TO ATTACK AS BEING TOO HIGH. THE CONSEQUENCE --IT SEEMS -

OF NOT HAVING COMPULSORY RETIREMENT, -HOWEVER, ARE UNFORTUNATE

AND -- SOMETIMES -- UNPLEASANT BOTH FOR THE ORGANIZATION OR

GROUP AND FOR THE PERSON INVOLVED HIMSELF. IT HAS LONG BEEN

OBVIOUS TO HE THAT THERE IS NO SPECTACLE MORE TRAGIC THAN

THAT OF A PERSON WHO HANGS ON IN A POSITION BEYOND THE POINT

Al,

_:

OF HIS DISABILITY BECAUSE HE WISHES TO BELIEVE HE IS STILL

DOING HIS JOB BUT -- IN REALITY -- IS SUFFERING THE DOUBTS

OF OTHERS AND OF HIMSELF AS TO WHETHER HE IS OR NOT. -

AS LAWYERS, WE HAVE ALL SUPPORTED THROUGH THE APPROVAL

OF THIE STANDARDS OF JUDICIAL ADMINISTRATION IN.THE VOLUME

RELATING TO COURT,ORGANIZATION UNDER RETIREMENTT. OF JUDGES"

(1,24) THAT ALL STATE JUDGES "SHOULD BE REQUIRED TO RETIRE AT

AGE 70"', IT SEEMS INCONSISTENT FOR THIS BODY TO RECOMMEND

THAT THOSE WHO SIT AS THE FINAL ARBITORS OF JUSTICE IN OUR

COURTS AND WHO WE LOOK TO FOR LEADERSHIP AND GUIDANCE DAILY

IN OUR PROFESSIONAL LIVES SHOULD BE REQUIRED TO RETIRE AT

AGE 70 WHILE WE HAVE NO SUCH REQUIREMENT IN THIS GOVERNING

s .:

BODY WHICH IS ADMITTEDLY OF SO VERY VITAL IMPORTANCE TO THE

:~;;:;-::: :C6~1/_

FUTURE OF OUR PROFESSION AND REQUIRES THE BEST MINDS POSSIBLE,

THE SAME REASONiS UNDERLYING THE STANDARD FOR MANDATORY

RETIREMENT OF JUDGES SHOULD APPLY -- IT SEEMS TO ME -- TO

MEMBERSHIP IN THIS BODY,

AS A PROFESSION, WE ALSO REQUIRE OUR EMPLOYEES AT THE

AMERICAN BAR CENTER TO RETIRE AT THE AGE OF 65 UNLESS

GRANTED SPECIAL AND EXTRAORDINARY PERMISSION ON A YEAR-TO-

YEAR BASIS TO EXTEND THAT EMPLOYMENT BY THE ASSOCIATION

BOARD OF GOVERNORS,

(THE A.E.F. PENsion PLAN ARTICLE IV

RETIREMENT, SECTION 1A.) IN ADDITION, THE PENSION PLAN FOR

OUR EMPLOYEES HAS A BUILT-IN INCENTIVE ENCOURAGING EARLY

RETIREMENT BEFORE THE AGE OF 65. (A.E.F, PENSION PLAN

3..

ARTICLE IV, RETIREMENT, SECTION 2..)

IN FACT, WE ARE ALL AWARE THAT THERE IS A DEFINITE

TREND IN THIS COUNTRY TOWARD EARLIER RETIREMENT AS IS

EVIDENCED IN ALMOST ALL PENSION PLANS. A RECENT LABOR

DEPARTMENT STUDY OF PRIVATE PENSION PLANS COVERING 20 MILLION

WORKERS SHOWED THAT ALMOST 90 OF THOSE WORKERS CAN QUALIFY

FOR SOME TYPE OF EARLY RETIREMENT BEFORE THE AGE OF 65.

MAYBE EQUALLY OH POINT IS THE FACT THAT ONE OF EVERY SIX

CIVILIANS EMPLOYED IN THE UNITED STATES WORKS FOR LOCAL,

STATE OR FEDERAL GOVERNMENT WHICH ALONG WITH THE MILITARY

IS ENCOURAGING 20 OR 30 YEARS OF .SERVICE -- THEN RETIREMENT

REGARDLESS OF AGE.

OF THE 46 FIRMS OR BUSINESSES, SUCH AS BANKS, RETAILERS,

INCLUDING THE AMERICAN BAR ASSOCIATION, WHICH SUBSCRIBE IN

i.

THE CHICAGO AREA TO PAY DATA SERVICE OF BUSINESS RESEARCH, INC.,

37 OUT OF THAT 46 REQUIRE MANDATORY RETIREMENT AT AGE 65,

THE NORMAL VOLUNTARY RETIREMENT OF ALL THE FIRMS IS LESS

THAN 65 YEARS OF AGE,

ALL OF US ARE WELL FAMILIAR WITHIN SOCIAL SECURITY

BENEFITS WHICH CONTEMPLATE RETIREMENT AT. OR BEFORE AGE 65,

WITH CIVIL SERVICE EMPLOYEE REQUIREMENTS WHICH! REQUIRE

RETIREMENT AT OR BEFORE AGE 65, AND WITH THE VERY REAL

MOVEMENT TOWARD EARLY RETIREMENT THROUGHOUT INDUSTRY,

BUSINESS AND PROFESSIONS.

WITH LESS THAN TWO PERCENT OF THE WORKFORCE IN AMERICA

NOW COMPRISED BY PERSONS OVER 70 YEARS OLD, IT SEEMS THAT

WE MUST OPEN OUR EYES TO THESE TRENDS. IT ALSO IS VERY

EVIDENT STATISTICALLY THAT WITHIN A VERY FEW YEARS THE AVERAGE I

AGE OF OUR.LAWYER MEMBERS IN THE AMERICAN BAR ASSOCIATION WILL

BE AT OR BELOW:THE AGE OF 36, IN FACT, AT THIS TIME. OVER

41% OF OUR ASSOCIATION (41,2% WITH 76,135 MEMBERS) IS NOW

UNDER THE AGE OF 36 AND ARE MEMBERS OF OUR YOUNG LAWYERS

SECTION,.

BIG BUSINESSES AND CORPORATIONS HAVE RECOGNIZED THE

NEED TO SET MANDATORY RETIREMENT AGES AND WE SHOULD TAKE

HEED FROM THEIR LESSONS. IN FACT, IN JANUARY 1 OF 1973, IBfl

BEGAN REQUIRING ALL.CORPORATE OFFICERS TO RETIRE MANDATORILY

AT AGE 60 UNLESS SPECIAL AND EXTRAORDINARY PERMISSION IS

GIVEN, MANY OTHER INDUSTRIES AND BUSINESSES HAVE MADE

SIMILAR MOVES,

IT SEEMS TO H1E THAT WE MUST ALL FACE THIS ISSUE AND

RECOGN IZE THAT WHILE CERTAINLY MANY LAWYERS CAN FUNCTION

WITH BRILLIANCE AND WITH REMARKABLE PERSEVERANCE PAST THE

AGE OF 70 THAT MOST OF US CANNOT OR WILL NOT BE ABLE TO DO SO

AT THE SAME LEVEL AS WE DID AT YOUNGER AGES, h'ITH THE

IMPORTANCE OF THIS BODY GROWING AND GROWING, AND ALSO WITH

THE FIRM REALIZATION THAT WE CANNOT OPERATE WIT HOUT EVERY

PERSON PRODUCING TO HIS UTMOST ABILITY, I THINK WE MUST

RECOGNIZE THAT WE NEED A REQUIREMENT SUCH AS THIS, THE

WORKLOAD OF A MEMBER IS GROWING EVERY MEETING AND WHEN YOU

CONSIDER THAT EACH OF US -- IN CASTING VOTES -- IS MAKING

POLICY FOR THE LAWYERS OF AMERICA THEN WE MUST MAKE EFFORTS

TO ASSURE THAT EACH MEMBER IS ABLE TO WORK TO CAPACITY, IN

'~---'-- -;-- -~'-'"

12

THAT MORE AND MORE THE DECISIONS AND POLICIES OF THE LAWYERS

OF AMERICA ARE OF VITAL IMPORTANCE TO OUR CITIZENS, WE MUST

TAKE MEASURES TO INSURE THAT EACH AND EVERY INDIVIDUAL IS

ABLE TO PRODUCE AT HIS UTMOST CAPABILITY AND POTENTIAL AND

REPRESENTS THE BEST AND THE MOST VITAL THINKING AND ENERGY

THAT WE CAN PRODUCE, I, THEREFORE, ASK YOU TO APPROVE THIS

AMENDMENT AS A MOVE TO INSURING THE CONTINUED VITALITY AND

VIABILITY OF THIS BODY.

-.574

-:II~

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 7

VOLUME I

FIRST DRAFT

REMARKS OF CHESTERFIELD SMITH
ON THE JUVENILE JUSTICE STANDARDS PROJECT
OF THE AMERICAN BAR ASSOCIATION AND
THE INSTITUTE OF JUDICIAL ADMINISTRATION

IN FEBRUARY OF THIS YEAR, THE BOARD OF GOVERNORS OF THE

AMERICAN BAR ASSOCIATION VOTED TO JOIN WITH THE INSTITUTE OF JUDICIAL

ADMINISTRATION IN SPONSORING A PROJECT ON JUVENILE JUSTICE STANDARDS.

THE INVOLVEMENT OF THE ASSOCIATION, HOWEVER, PRE-DATES THIS FORMAL

RESOLUTION.

THE INITIAL PLANNING FOR THE PROJECT WAS FINANCED BY A

GRANT FROM THE LAW ENFORCEMENT ASSISTANCE ADMINISTRATION OF THE

DEPARTMENT OF JUSTICE AND WAS CARRIED OUT BY A COMMITTEE MADE UP

OF LAWYERS AND OTHER EXPERTS FROM RELATED DISCIPLINES. AMONG THE

LAWYER MEMBERS OF THE PLANNING COMMITTEE WAS A PAST-PRESIDENT OF

THE AMERICAN BAR ASSOCIATION, PAST-CHAIRMAN OF THE ABA's SECTIONS

OF CRIMINAL LAW AND INDIVIDUAL RIGHTS AND RESPONSIBILITIES, THE

CHAIRWOMEN OF A COMMITTEE OF THE ABA's SECTION OF FAMILY LAW, AND

THE STAFF DIRECTOR OF THE ABA's COMMISSION ON CORRECTIONAL FACILITIES

AND SERVICES.

TOTAL FUNDING FOR THE PROJECT AMOUNTS TO ALMOST ONE AND

A HALF MILLION DOLLARS AND HAS BEEN OBTAINED FROM A VARIETY OF

GOVERNMENTAL AND PRIVATE FOUNDATION GRANTS, THE ASSOCIATION THROUGH

THE AMERICAN BAR ENDOWMENT IS DIRECTLY CONTRIBUTING MORE THAN TWENTY

PERCENT ON THIS SUM.

THE RESOLUTION AUTHORIZING THE INVOLVEMENT OF THE ABA IN

THIS PROJECT DIRECTED THE PRESIDENT OF THE ASSOCIATION TO APPOINT

WITH THE PRESIDENT OF THE INSTITUTE OF JUDICIAL ADMINISTRATION, A

-2-

A GROUP OF TWENTY-FIVE LAWYERS AND OTHERS TO SUPERVISE THE DRAFTING

OF THE STANDARDS. AS PRESIDENT-ELECT OF THE ASSOCIATION, I PARTICIPATED

IN THAT PROCESS. OUR MEETING TODAY MARKS THE OFFICIAL BEGINNING

OF THIS EFFORT.

A REVIEW OF THE PROPOSED TWENTY-SIX TOPICS FOR STUDY AND

STANDARD DRAFTING SUGGESTS THAT THE CONCERN OF THE LEGAL PROFESSION

WITH THIS PROJECT IS BOTH OBVIOUS AND APPROPRIATE. JUSTICE, HOWEVER

DIFFICULT IT MAY BE TO DEFINE AND HOWEVER ELUSIVE IT MAY APPEAR

TO BE, IS, AFTERALL, THE PRINCIPAL GOAL OF OUR LEGAL SYSTEM. CRIME

IS A PROBLEM OF PROFESSIONAL AS WELL AS PERSONAL CONCERN FOR MEMBERS

OF THE LEGAL PROFESSION. COURTS, THEIR ORGANIZATION AND WHAT GOES

ON IN THEM, CONSTITUTE THE DAILY WORKING ENVIRONMENT FOR MANY LAWYERS.

-3-

BOTH INDIVIDUAL LAWYERS AND THE ORGANIZED BAR ARE COMING TO REALIZE

THAT THERE RESTS WITH THE PROFESSION, A SPECIAL RESPONSIBILITY IN

THE AREA OF TREATMENT OF OFFENDERS AND CORRECTIONS. THE ABA's

CORRECTIONS COMMISSION HAS INITIATED A NUMBER OF PROJECTS IN RESPONSE

TO THIS RECOGNITION.

THE MAJOR CONTRIBUTION TO THE SUBSTANTIVE WORK OF

FORMULATING THE STANDARDS FOR JUVENILE JUSTICE WILL COME FROM

INDIVIDUALS -- MEN AND WOMEN SERVING ON THE COMMISSION ITSELF,

ON ITS STAFF AND AS CONSULTANTS. THE REAL CONTRIBUTION OF THE

BAR IN THE COLLECTIVE SENSE, HOWEVER, WILL COME AFTER THE STANDARDS

HAVE BEEN COMPLETED AND ADOPTED BY THE ABA's HOUSE OF DELEGATES,

THE AMERICAN BAR ASSOCIATION IS THE PREEMINENT NATIONAL

-4-

ORGANIZATION OF THE LEGAL PROFESSION. ITS MORE THAN 160000 MEMBERS

MAKE IT THE LARGEST VOLUNTARY PROFESSIONAL ASSOCIATION IN THE WORLD.

IT IS VOLUNTARY IN THAT NO LAWYER IS COMPELLED TO BE A MEMBER IN

ORDER TO PRACTICE LAW, ADMISSION TO THE PRACTICE OF LAW IS A

MATTER HANDLED ON THE STATE LEVEL. SOME STATE BAR ASSOCIATIONS

ARE ALSO VOLUNTARY, ALTHOUGH THE MODERN TREND IS TOWARD THE UNIFIED

BAR ASSOCIATION IN WHICH EACH LAWYER PRACTICING IN THAT STATE MUST

BE A MEMBER. EACH STATE BAR ASSOCIATION WHETHER VOLUNTARY OR

UNIFIED, IS REPRESENTED IN THE AMERICAN BAR ASSOCIATION'S HOUSE

OF DELEGATES AS ARE MANY OF THE LARGER LOCAL BAR ASSOCIATIONS.

IN SPITE OF THIS REPRESENTATION, STATE AND LOCAL BAR ASSOCIATIONS

RETAIN THEIR TOTAL AUTONOMY AS FAR AS THE ASSOCIATION IS CONCERNED.

-5-

GENERALLY THE RELATIONSHIP BETWEEN THE ABA AND THE SEVERAL STATE

AND LOCAL BAR ASSOCIATIONS IS CORDIAL AND MUTUALLY SUPPORTIVE.

BECAUSE OF ITS STRUCTURE AND RELATIONSHIP TO THE REST

OF THE ORGANIZED BAR, THE ABA HAS UNIQUE CAPABILITIES WITH RESPECT

TO THE IMPLEMENTATION OF WHAT ULTIMATELY WILL BE PRODUCED BY THIS

COMMISSION. THE SUCCESS OR FAILURE OF THIS UNDERTAKING IN REALISTIC

TERMS WILL BE MEASURED NOT BY THE THICKNESS OF EACH OF THE PROJECTED

26 VOLUMES OR BY ITS SCHOLARLY INTEREST, BUT BY THE NEW LEGISLATION,

NEW RULES AND NEW PROCEDURES ACTUALLY ADOPTED FOR THE TREATMENT OF

JUVENILE OFFENDERS. IF CONTEMPORARY HISTORY CAN TEACH US ANYTHING,

IT IS THAT GOOD INTENTIONS AND SOUND IDEAS ARE NOT ENOUGH. THEY

ARE NOT ENOUGH TO SATISFY THE ASPIRATIONS OF THE AMERICAN PEOPLE

-6-

WHICH ARE MORE AND MORE BEING STATED AS DEMANDS,

THE AMERICAN BAR ASSOCIATION SPENT ALMOST TEN YEARS

AND A MILLION DOLLARS, AS WELL AS INTENSIVELY INVOLVED MORE THAN

A HUNDRED EXPERT LAWYERS, INCLUDING A MAN WHO BECAME CHIEF JUSTICE

OF THE UNITED STATES IN PRODUCING THE STANDARDS FOR CRIMINAL

JUSTICE.

THE LAST OF THESE SEVENTEEN STANDARDS WAS PASSED BY THE

HOUSE OF DELEGATES LAST AUGUST. SOME WRITERS HAVE SAID THE

STANDARDS ARE A UNIQUE CONTRIBUTION TO THE LITERATURE OF CRIMINAL

JUSTICE.

THAT IS WORTHWHILE, BUT UNLESS AND UNTIL THOSE STANDARDS

ARE WIDELY ADOPTED AS THEY HAVE BEEN IN MY HOME STATE OF FLORIDA,

OUR JOB WILL NOT BE DONE. THE ABA IS NOW INVOLVED IN A NATIONWIDE

EFFORT TO SECURE ADOPTION OF THE STANDARDS FOR CRIMINAL JUSTICE.

-7-

IF PRESENT PLANS ARE CARRIED OUT, THE STANDARDS FOR JUVENILE

JUSTICE WILL NO DOUBT BE CHARACTERIZED BY THOUGHTFULNESS AND

SCHOLARSHIP,

THAT, OF COURSE, IS ESSENTIAL. WHAT MUST CONCERN

US MOST, HOWEVER, IS WHAT WE CAN DO WITH THEM. THIS WILL BE THE

INVOLVEMENT OF THE ABA. STATED WITH EXTREME SIMPLICITY, WITH

RESPECT TO JUVENILE JUSTICE, WE HAVE GOT TO MAKE THE REAL WORLD

BETTER THAN IT IS NOW,

-8-

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 8

VOLUME I

CHESTERFIEIJ) SIIITH
PRESIDENT
AMERICAN BAR Assoc!

RE,1ARKS OF:

BEFORE:

PLACE:

-.

SUBJECT:

THe HUMAN DEBRIS OF THE
VIETNAM WAR AND THE
OBLIGATION OF THE
LEGAL PROFESSION

STWE.NTY MINUTES

I- -

TUE:

-. WISH TO SPEAK TO YOU TODAY OF A MATTER OF TREMENDOUS

IMPORTANCE TO THIS NATION BUT ONE WIICH HAS BEEN LARGELY

-DISREGARDED.BY MOST AMERICANS AND PARTICULARLY BY THE LEGAL"

PROFESSION.

THERE ARE MORE THAN G MILLION VIETNAM ERA

VETERANS--- MEN AND WOMEN WHO SERVED IN THE UNITED STATES

./; .
"-,.* ,

MILITARY BETWEEN

.. MILLION OF THOSE

PHYSICALLY AT LEi

SATISFACTORY IT

THOSE MEN Hi

BUT UNLIKE PRIOR
,ue-'. ;. ; . *

AUGUST 1964 AND JANUARY1973.

SOME 3

SERVED I N VI ETNAM, OST OF THEM CAME HOME --

AST -- AND THEIR RECEPTION HAS BEEN LESS THAN

SEEMS TO ME,

WE COME HOME FROM AMERICA'S LONGEST WAR.

WARS, THEY CAME HOME NOT AS HEROES BUT RATHER

AS UNPLEASANT REMINDERS OF AN UNHAPPY AND INEXPLICABLE

'-',' : .2 4.-,. ,,... .... ,. ,.. .. . .

,

-;:::

CONFLICT,

* .. .. .
N 'A

IN OUR HASTE AS A NATION TO FORGET THAT WAR,

THE VETERAN -- IT SEEMS TO ME --HAS BEEN LEFT ALMOST TOTALLY :

ALONE, HE HAS BEEN LEFT ALONE TO GRAPPLE WITH PSYCHOLOGICAL

AND PSYCHIATRIC PROBLEMS AGGRAVATED BY FEELINGS OF GUILT OR

MISUNDERSTANDING. HEHASBEEN LEFT WITH HIS DRUG ADDICTION

WHICH HE PICKED UP, AS A GENERAL RULE,, NOT BEFORE HE WENT TO

VIETNAM BUT WHILE THERE. HE HAS BEEN LEFT WITH THE

UNSATISFYING PROSPECT OF JOBLESSNESS, HE IS UNEMPLOYED, HAS

NO TRAINING AND IN MANY, MANY CASES HAS BEEN HOPELESSLY

DISABLED BOTH PHYSICALLY AND PSYCHOLOGICALLY.

BUT IN

ADDITION TO THE THOUSANDS AND THOUSANDS WHO SERVED MOST

HONORABLY, THERE ARE THOSE THOUSANDS WHO RECEIVED "LESS

-:. I :. ~ ' ~.f':i.rr .~ .

7

' THAN HONORABLE" DISCHARGES AND THAT GREAT BODY AS YET NOT

SATISFACTORILY NUMBERED WHO REFUSED TO SERVE -- WHO

RESISTED THE DRAFT OR DESERTED ONCE INDUCTED VARIOUS-

NUMBERS HAVE BEEN BANDIED AROUND -- SOME AS HIGH AS 203,000.

BUT EVEN THE MOST CONSERVATIVE NUMBER OF DRAFT RESISTORS.

OR DESERTERS IS PLACED AT SOMEWHERE AROUND 30,000 WHO ARE""

NOW LIVING OUTSIDE THE UNITED STATES OR UI$DERGROUND IN THE

UNITED STATES AS FUGITIVES ESTRANGED FROM THEIR FAMILIES

SAD FRIENDS. THE TRAGIC PLIGHT OF THE VETERAN AND THE EQUALLY

TRAGIC PLIGHT OF THE DRAFT RESI.STOR ARE HORRIBLE AND

DISTURBING.SITUATIONS, IN PART, THE VETERAN AND THE DRAFT

RESISTOR SUFFER BECAUSE THEY ARE -- IN A VERY REAL SENSE --

THE ONLY INHERITORS OF THE MASSIVE CATASTROPHY CALLED

* .- ~:1,*

I-:

	Table of Contents
	Trial of Jesus
	Introduction of governor Claude...
	Open specialization - Should state...
	Open specialization - Should state...
	Additional notes re. Specializ...
	Address to new admitters to the...
	Re. Proposed amendment to the American...
	Remarks of Chesterfield Smith on...
	The human debris of the Vietnam...
	Change is with us, and change is...
	Constitutional revision commis...
	Reprint of remarks by Mr. Smith...
	Rough narrative of procedure followed...
	Lawyers title guaranty fund annual...
	Jack of all trades - The case for...
	Open specialization - Should state...
	Remarks of Chesterfield Smith given...
	Traffic court award presentati...
	Should specialization of legal...
	The case for legal specialization...
	The case for legal specialization...
	The case for legal specialization...
	Specialization in the law?
	Specialization in the legal...

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0	sobekcm_page_globals.constructor	Application State validated or built
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0	sobekcm_page_globals.constructor	Navigation Object created from URI query string
0	sobekcm_database.verify_item_lookup_object
0	sobekcm_page_globals.display_item	Retrieving item or group information
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0	sobekcm_assistant.get_entire_collection_hierarchy
0	cached_data_manager.retrieve_item_aggregation
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0	item_aggregation_builder.get_item_aggregation	Found 'all' item aggregation in cache
0	system.web.ui.page.page_load (ufdc.page_load)
0	sobekcm_page_globals.constructor.on_page_load
0	html_echo_mainwriter.add_style_references	Adding style references to HTML
0	html_echo_mainwriter.add_text_to_page	Reading the text from the file and echoing back to the output stream
26	html_echo_mainwriter.add_text_to_page	Finished reading and writing the file


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