Speeches by Chesterfield - Vol. III, 38-47. 1970-1971

VOLUME III

SPEECH NUMBER TITLE OR GROUP ADDRESSED

#38 SPECIALIZATION IN THE LAW WHITHER NOW?
TENNESSEE BAR ASSOCIATION, 89th
ANNUAL CONVENTION
Memphis, Tennessee
June 11, 1970

#39 INDIVIDUAL RIGHTS AND RESPONSIBILITIES -
BARTOW ROTARY CLUB
Bartow, Florida
July 1, 1970

#40 SPECIALIZATION IN THE LAW WHITHER NQW?
JOHN MARSHALL BAR ASSOCIATION
Gainesville, Florida
October 2, 1970

#41 PHI DELTA PHI HOMECOMING BREAKFAST
Gainesville, Florida
October 31, 1970

#42 SPECIALIZATION -.HOW TO SOLVE.
THE DILEMMA?..-*
OKLAHOMA BAR ASSOCIATION
Tulsa, Oklahoma
November 9, 1970

#43 CED'S POLICY FORUM ON MODERNI'ING
STATE GOVERNMENT -
Atlanta, Georgia
December 16, 1970

#44 BENEFITS THAT BAR UNIFICATION
HAS BROUGHT TO THE PUBLIC-,
BENCH AND BAR OF FLORIDA -
BAR UNIFICATION SEMINAR PENNSYLVANIA
BAR ASSOCIATION-
Harrisburg, Pennsylvania
January 28, 1971

VOLUME III (cont.)

SPEECH NUMBER TITLE OR GROUP ADDRESSED

#45 LEGAL SPECIALIZATION CURRENT
DEVELOPMENTS WITHIN THE
ORGANIZED BAR -
LAWYERS CLUB OF ATLANTA
Atlanta, Georgia
April 21, 1971

#46 LEGAL SPECIALIZATION CURRENT
DEVELOPMENTS WITHIN THE
ORGANIZED BAR -
ANNUAL MEETING OF THE ARKANSAS
BAR ASSOCIATION -
June 3, 197i

#47 FLORIDA'S COURT SYSTEM AN ANALYSIS -
LEAGUE OF WOMEN VOTERS OF FLORIDA
November 8, 1971

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 38

VOLUME II

Address of: Chesterfield Smith, Lakeland, Florida,
Member, Board of Governors, American
Bar Association

Before:'- Tennessee Bar Association, 89th Annual Convention,
Memphis, Tennessee

Title of
Address: "Specialization in the Law Whither Now?"

Date of
Delivery: Thursday, June 11, 1970 11:00 A.M.

Recognition and regulation of specialization in

the practice of law is not a new subject for the legal

profession, nor for the American Bar Association.

In 1954, the House of Delegates adopted a reso-

lution approving in principle the necessity to regulate

voluntary specialization in the various fields of the

practice of the law for the protection of the public and

the bar; and approving the principle that in order to

entitle a lawyer to recognition as a specialist in a

particular field, he should meet certain standards of ex-

perience and education. The implementation of that reso-

lution was delegated to the Board of Governors, subject

to final approval by the House of Delegates. Thereafter,

several efforts were made in the House of Delegates to

implement that resolution without success.

In August 1967, the Committee on Availability of

Legal Services recommended to the House of Delegates that

the Board of Governors renew its efforts to implement the

1954 resolution providing for the recognition and regulation

of voluntary specialists in the various fields of the practice

of the law. As a result of action by the House of Delegates

on that recommendation, the Board of Governors established a

Special Committee on Specialization, directing it to assemble

and study information relevant to all aspects of voluntary

specialization, and if the committee should determine that the

promulgation of a plan of voluntary specialization was desirable,

to prepare a plan in various fields of the practice of law

for the consideration of the Board of Governors and the

House of Delegates.

That committee, upon which I served for two years

as its Chairman, presented a Recommendation and Report at

the 1969 Midyear Meeting of the House of Delegates held in

Chicago which was adopted and approved.

While recognizing that regulation of specialization

in the law practice may increase the availability of legal

services to the general public, the Report of the Committee

acknowledged that such regulation will also create certain

problems for both the public and the legal profession. Based

upon the recommendation of the Committee, the House of Delegates

there concluded that the determination of whether to promulgate

a uniform or national plan for the regulation of voluntary

-2-

legal specialization should be delayed until experimental

programs for the regulation of specialization have been con-

ducted at the state level. Today I will advance what I believe

to be the motivating influences which led the House of Dele-

gates to that conclusion.

Even though many lawyers still at least pay lip

service to the concept that a lawyer can be a jack of all

legal trades, in fact modern lawyers cannot be fully proficient

and efficient in every field of the law, and most lawyers now

clearly accept that fact by self-imposed restrictions on

their own practice.

Some degree of specialization is properly an existing

necessity of modern law practice. Specialization permits the

lawyer to make the most efficient use of his time, skills,

and knowledge. The complexity of our society and the increasing

participation therein by government make it clear that no indivi-

dual lawyer will ever again be proficient in the performance

of all legal tasks. Our ever-expanding economy will inevitably

lead to an ever-increasing pattern of specialization by

practicing lawyers in a limited number of the various fields

of the law practice. An increase in the number of lawyers who

specialize in and of itself would improve the overall quality

of the total services rendered by lawyers to their clients,

simply because those lawyers who specialize will have an

opportunity to concentrate their experience and their continuing

legal education.

-3-

While specialization in the practice of law may

thus improve the quality of legal services rendered to his

clients by the particular lawyer thus specializing, specializa-

tion is not synonymous with expertness. The certified specialist

must still be a lawyer and not a mere legal technician. A

competent lawyer is not required to know the law without

research; he must have the ability to find and evaluate the

law. Even a true expert, with substantial repetitive experience

in a given field, will rarely if ever, give a firm commitment

as to the law on a particular point without research, unless

his recent experiences contain the answer. His advantage

arises primarily from the shorter research time required, as

well as from his experiences. One becomes a real expert only

by both experience and constant study in a particular field or

fields of the law practice extending over a period of several

years, and not by certification as a specialist.

If a lawyer is to specialize in one field of the

law, it is hardly arguable that he should meet certain

minimum standards of experience and education in that one

field of the law. Certification by a competent authority

must be an integral part of any complete plan or program

ultimately promulgated to regulate specialization in the

law practice. A bar-represented expertness, or even a bar-

countenanced self-certification of expertness, that does

not in fact exist, would be far worse in its effect upon

the public image of the organized bar than any of the present

detriments to that image attributable to the non-regulation

-4-

of specialization. Certainly all lawyers recognize that the

attempted performance of professional services by lawyers

who are individually incompetent to perform such services

brings disfavor on the legal profession as a whole.

Self-recognition of special proficiency which is

not verified and factual is not the ultimate answer, nor is

it even now an acceptable substitute for certification. The

major difficulty with self-certification, apart from the case

of the lawyer of little integrity and no actual expertise

who will claim expertise for self-aggrandizement, is with

the lawyer who honestly believes that he is qualified for

specialized practice but who would be rated as a novice by

those lawyers clearly entitled to accreditation as experts.

If the public image of the organized bar is to be unblemished,

lawyers as a group must exercise a high degree of respon-

sibility to those far less informed members of the general

public seeking a lawyer and who rely or may tend to rely

upon what may be a false claim of special proficiency.

Lawyers who undertake legal services which they

are individually incompetent to perform lend credence to the

claim of lay groups that attempts by the bar to deter the

unauthorized practice of law by specialized laymen is

motivated solely by the economic self-interest of the com-

plaining lawyers. If the organized bar can provide an

effective method whereby the public, or general practitioners

-5-

on behalf of their clients, can identify and select compe-

tent legal specialists, the chance that persons needing

legal services will turn to well-publicized specialized

laymen, rather than to lawyers, will be minimized.

It is extremely important that the lawyers who

presently specialize do not develop into narrow and autonomous

self-policing units. The experience of the medical pro-

fession in that regard demonstrates that this possibility

is a real and present danger. A similar fractionalization

of the legal profession could ultimately be detrimental to

both the public and the specialized lawyer interest groups,

and extreme vigilance on the part of the organized bar is

warranted, whether specialization be regulated or unregulated,

in order that general supervision of all specialized lawyer

interest groups is exercised by the organized bar as a whole.

I am convinced that any specific program of regu-

lation will be opposed by some lawyers. Some lawyers will

object to the time and effort they feel will be involved

in obtaining certification. Other lawyers fear that they

will not be able to qualify in a particular field of the law

in which they are interested, especially if the certification

procedure imposes high standards. Many general practitioners

who do not specialize fear a loss of practice to those who

will qualify as legal specialists and who are so certified.

-6-

A few lawyers presently specializing are apprehensive that

they may be required by regulation to give up work which

they are now doing in legal areas outside of their own

specialty. Many lawyers, whether specialists or generalists,

also fear that a program of certification would tend to

create narrow specialties and thus make it more difficult

to assure adequate service to clients in areas which

overlap several specialties.

Those obstacles, fears, and objections must be

carefully considered. Such questions as what is to be the

certifying authority, what standards are to be established,

what should be done about existing specialists for whom it

might be an unreasonable burden to impose the same strict

certification requirements, and what means are to be utilized

to inform the general public of the qualifications of a

certified legal specialist, are areas of great concern to

anyone.

In considering the merits of official recognition

and regulation of specialization in the law practice, the

benefits and detriments which might be obtained therefrom

must be analyzed in the context of specific programs. The

limitations which might be placed upon practice by a certi-

fied specialist should be considered. Under existing law,

the standard of care required for lawyers of certified status

would of course be increased with additional exposure to

-7-

liability for error and omissions.

The nature of legal practice differs from state

to state, and there are significant differences among the

states in both substantive and procedural law. The practice

of law is now regulated almost exclusively within the various

states. Both initial admission and professional discipline

are handled at the state level. Regulation of specialization

is intrinsically related to those other aspects of the

regulation of the practice of law. The fact that the power

to regulate the legal profession now exists only at the state

level compelled me to believe that state level regulation

of specialization was the only way in which this reform

could ever be achieved. State participation certainly is

an obviously indispensable ingredient of any acceptable

plan. I submit that if regulation is placed at the state

level, the regulatory body will be much more flexible and

responsive in reacting to emerging problems than if the

regulatory body is placed at the national level.

No matter how much care is now devoted to a

specific plan of regulation of specialized law practice,

such program cannot possibly provide against many practical

problems which will develop. Pitfalls will inevitably

occur, means of adjusting those deficiencies will have to

be worked out, and the program ultimately adopted will

unquestionably have to be modified by experience. As time

-8-

goes on, a body of experience will develop which will inevitably

lead to better criteria for providing quality legal services

in specialized areas.

It is only when those developments have occurred

that consideration should be given to the subsidiary issues

which presently occasion so much dialogue among lawyers

debating the "HOW" of legal specialization. The organized

bar needs experience at all levels before final positions

are taken.

I am convinced that some of the standard arguments

presented against specific programs of regulation of speciali-

zation in the law practice are real, but I also believe that

many of them are only imagined. I have also concluded that

the need for regulated specialization in many states is

minimal, but in other states, I believe that the public

interest indicates that some action on the matter be taken

by the organized bar. It appears to me that it is a matter

for each state to decide for itself in view of its particular

circumstances and economy.

In encouraging those states which wish to do so to

seek solutions to the numerous practical and theoretical pro-

blems involved in legal specialization, the American Bar

Association was not deciding whether the legal profession

will have specialization. Specialization is already here,

and it will inevitably increase. The issue was only whether

-9-

a plan for specialization in the practice of law would be

recommended on a national basis at that time. It was the

conclusion of the House of Delegates that now is not the

time to take such action.

There are those who are disappointed that the

American Bar Association did not take a bold leap forward.

Others are equally vexed because it did not summarily reject

further consideration of any change in this area of the legal

profession. In answer to both contentions, I suggest that

the course of action adopted takes full advantage of the

beneficial way the organized bar functions in this country.

The American Bar Association, as an instrument of nationwide

leadership for lawyers, should and must be cautious in altering

or changing the structure of the legal profession. State bars

have many times in the past served as laboratories of change.

I personally believe that state bars have led the way to many

of the more positive advances achieved by the organized bar in

recent years. Certainly, one of the more favorable attributes

of our system of bar organization is that a single courageous

state bar may, if the members thereof choose, serve as a labora-

tory and try novel, political, social and economic experiments

without risk to other state bars, or to the American Bar

Association as an entity.

Such experimental or pilot programs will be useful

whether the programs are successful or unsuccessful. The

-10-

experience developed by diverse approaches may permit the

recommendation of criteria for a flexible but meaningful

system for the recognition of specialties; or may lead to

the final conclusion that no effective system can be devised

that will have more advantages than disadvantages.

For the first time in its history, the American

Bar Association now has a committee with general jurisdiction

of all matters pertaining to legal specialization. That

committee was directed to collect data, make surveys of

both the public and the legal profession, conduct studies

and generally to assist state bar associations in developing

programs relating to specialization in the law practice.

In particular, the committee was given the responsibility

of recommending model plans of specialization for adoption

by the states, and a national plan for specialization if

the practicability and desirability of such plans become

apparent at some future time. So, for the first time,

nationwide leadership in the troublesome field of legal

specialization is available.

While admittedly that action is only a first

step, its importance is two-fold. First, it does commit

the American Bar Association to seek a solution to one of

the most vexing and troublesome areas in the structuring of

the organized bar, the regulation of legal specialization.

Second, it determines that the approach taken in solving the

-11-

problem of legal specialization by the American Bar Associa-

tion will be evolutionary and not revolutionary.

The plan is working. Several states are already

actively considering whether or not they should promulgate

their own plans for the certification and regulation of legal

specialists. Among those states are California, Colorado,

Florida, Maryland, Michigan, Minnesota, New Jersey, Virginia,

Texas and Wisconsin. In fact, thirty state bar associations

have committees studying the matter of legal specialization.

The specialization plans being proposed for the

bars of the States of California and Wisconsin have been

tentatively selected by the ABA as proper vehicles for

experimentation.

A pilot program proposed by its Specialization

Committee has been adopted by the Board of Governors of the

State Bar of California. The pilot program establishes a

California Board of Legal Specialization. Initially, the five-

year experimental program will be confined to three areas

of law; that is: (1) criminal law; (2) workmen's compensation

law; and (3) tax law. Advisory Commissions are to be set up

in each field.

That program will be put into actual operation in

California when amendments to the Rules of Professional Conduct

have been approved by the Supreme Court. The implementation

of this plan during this calendar year will now insure that

-12-

both the American Bar Association and interested state bar

associations will have available for the first time facts

which point out the dangers and pitfalls which inevitably

will be encountered, and which answer or refute the existing

arguments, both for and against, the regulation of speciali-

zation in the law practice.

The Wisconsin Committee on Specialization has also

submitted a final report recommending a pilot program to the

Board of Governors of the State Bar of Wisconsin. The Board

of Governors of the Wisconsin State Bar currently is soliciting

the views of Wisconsin lawyers before taking final action on

the report, and has placed the subject on the agenda of the

Annual Meeting to be held this month. That program if

adopted covers all areas of law. I have been told that

substantial opposition to that particular pilot program has

developed, principally on the ground that it is far too broad,

and that the plan probably will not be adopted, at least in

its present form.

The State Bar of Michigan has recently developed

a plan for a pilot program with two specialties; that is,

probate and labor law. The Committee of the State Bar of

Michigan which devised the plan estimates that it is most

likely that at least one year will elapse before the plan

can be fully implemented.

The Committee on Specialization of the State Bar

-13-

of Texas has just recently recommended that a pilot program

be developed in that state. I am advised that it will be

about a year from now before such a program is developed

and presented to the Board of Governors and the Supreme

Court of Texas.

The American Bar Association intends ultimately to

make final selection of a total of three (3) state pilot

programs when and as such programs have been implemented.

After such final selections, the American Bar Association

will recommend that all other state bar associations (except

those designated for experimental programs)}await the results

of an evaluation of those three programs, since the American

Bar Association feels that it is not desirable for a large

number of states to embark upon even experimental programs in

specialization before uniform standards can be established

lest unnecessarily divergent programs become prematurely

crystalized. The American Bar Association will evaluate

these pilot programs on specialization, both from the stand-

point of their benefits and their detriments, and the results

will then be made available to all state bar associations

and other interested groups.

While I cannot now predict with any certainty that

the action taken by the American Bar Association last year

will ever lead to the development of a national plan of legal

specialization, I do believe, and I do predict, that within

-14-

the next few years the action there taken will permit a deter-

mination of whether it is best that legal specialization be

regulated or be unregulated. That course appears to me to

be proper. I hope that the development of pilot programs

in the regulation of legal specialization will receive the

support of lawyers throughout the United States, regardless

of whether they now favor or now oppose the certification of

legal specialists. Even though the Tennessee Bar Association

determines that it is not now interested in the conduct of an

experimental program of its own, it seems crystal clear to me

that it should at the minimum have a committee of lawyers who

are following developments in this area and who are charged

with the responsibility of evaluating the results obtained in

those states who do conduct such experimental programs.

I recommend therefore that your Board of Governors consider

the matter, and I pledge to them that the American Bar Associa-

tion Committee on Specialization will cooperate with them in

every way.

Thank you.

-15-

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 39

VOLUME III

4e39

"INDIVIDUAL RIGHTS AND RESPONSIBILITIES"

COMMENTS BY CHESTERFIELD SMITH, BARTOW, FLORIDA
BARTOW ROTARY CLUB
JULY 1, 1970

We who are fortunate enough to live in the United

States of America are again engaged in one of our perennial

struggles between individual rights and individual respon-

sibilities. Regrettably, the advantage at present seems to

be falling to the advocates of individual rights. Everyone

now talks about civil rights; no one has much to say these

days about duty, and obligation, and responsibility. If

someone does bring up that point, not many interested hearers

are in evidence, and even those seem to feel the subject

distasteful.

I recognize that societies do sometimes reach the

point where the people have no recourse except revolution.

The United States of America of all nations should know that.

Our country has been known across the years to support a

revolution or two elsewhere in the world. But until that

times comes, any nation-state has not only the right but the

duty to protect itself and its citizens from minorities who

attempt to set their private morality above the public law.

When and if the time comes when the public decides the minority

is right and the law is wrong, then the law will be changed

or there will be a revolution. But until then, we must assume

that the law represents the wish of the public, or at least

the majority thereof, and it must be enforced.

We as a nation have been remarkably tender toward

dissenters. We can boast a better record in that area than

any other nation in the world. We have some scars here and

there; the denial of habeas corpus during the Civil War,

the Communist hysteria and its tragic excesses after both

World Wars, the relocation of Japanese-American citizens

during World War II, but on the whole we do not come off

too badly. People today in the heat of passion over Vietnam

and Cambodia forget that there has been a noisy, strong-minded

minority vocally opposed to every war we have ever fought,

saving only World War II. It was true of Korea, of World

War I, of the Spanish-American War, of the Mexican War.

Many opponents of our own Civil War were absolutely persuaded

that military victory was impossible in that one. And both

1812 and the Revolution were bitterly opposed by many Americans.

We have allowed the dissenters their voice, have tolerated

those who lash out savagely at the whole fabric of our society,

yet never in our history have the protections accorded under

the law to individuals and groups been stronger. We cannot

permit espionage, sabotage or treason. But subject only to

the clear and present danger limitation, we allow even a lunatic

fringe to sound off at will. When a speaker can stand before

an audience and exhort them to "Burn it down, baby, burn it

down!", and that not only once but numerous times, and stay

-2-

out of jail, I have no fear for the civil liberties of dis-

senters: Even the accused American criminal today has greater

protection than the upstanding citizens of half the world.

And yet, despite that record, despite a heritage

which should evoke pride, there are large numbers today who

seem to hate this country and virtually everything it stands

for. Our press, our educators, our churchmen, our political

leaders outdo one another in damning and denouncing our

President, our Supreme Court, our Departments of State and

Defense, our admirals and generals, our Governor, our legis-

lators, our sheriff and police, our superintendents of

schools, our national policies, foreign and domestic. If

you read the editorials, the columns, the speeches and panel

discussions of the so-called "opinion makers" of our society

today, whether conservative, liberal or middle-of-the road,

you really will wonder why anyone should be proud to be an

American. All we hear any more from them is what is wrong

with us, and those few individuals who dare now and then to

speak up in defense of our really very impressive past and

present are accused of being administration finks: It has

become very fashionable nowadays to be very sophisticated,

very cynical and very critical. Dissent and difference from

whatever party or person happens at the moment to be in power

is one thing an important and essential part of any democracy.

But we lack and must promptly develop the concept of a "loyal

opposition", opposed to the present administration, but

-3-

nevertheless always faithful to the nation.

Of course, our society does have shortcomings. So

long as men are men and not gods, we shall falter and fail.

It becomes largely a question of emphasis, whether one con-

centrates on one's blessings as compared with other actual

societies or on one's bane, as compared with "Utopia". The

young can properly see only one dimension forward from

where we are to the future world of their hopes and ideals.

Older people must from the imperatives of experience take

account of two other equally valid dimensions backward to

the way things used to be, and sideways to the way things

are in other societies.

So today, understandably, the young person stresses

the individual and his rights and privileges. He must, he

claims, be allowed to decide whether he will fight to defend

his country. He and his private morality must likewise, he

feels, be free to disobey public laws he does not like. He

accordingly cannot be expected to cooperate with police,

reporting crimes he witnesses. But America has been here

before. We have been through periods in which the individual

rights of our citizens have taken precedence over their

individual responsibility to others and to our country.

And without such periods and such protest, there is always

the danger that the State will become a monster, devouring

and depriving its citizens instead of serving them. The

-4-

dialectic is an indispensable part of our tradition, which

has always protected us from tyranny. But the pendulum has

in the past invariably swung back, and there is every reason

to believe that it will do so again.

What we need to make that pendulum swing is to set

for ourselves again ideals toward which we are willing to

strive, despite sacrifices. I would suggest two goals to meet

this need. Today's critics and attackers are chiefly destruc-

tive and often anarchistic, never regarding the structures

to take the place of those they would tear down. But if they

are pressed, they come up with some vague statement like justice

for everyone and liberty for us all. Exactly! Justice and

liberty. Here are my ideals, my goals. They are goals toward

which we must always be striving and never fully attaining,

not some which can be reached, permitting us to relax in

complacency and decadence. Let me elaborate.

The phrase "law and order" has fallen into disrepute

during these times. It does emphasize the necessity of order

as a basis for any kind of society. But order can be over-

emphasized and law can be abused. Law and order can be a

synonym for repression. Not if we read the term justice into

law or make it a trilogy law, order and justice. Justice is

what law should be about giving each person his due. What

is his due? That is the concern of each of us lawyer and

layman alike. Striving to afford justice to all is a noble

-5-

task and one that is enobling, too.

Liberty. We all desire liberty for ourselves, and

there are those who feel that the law restrains and is the

antithesis of liberty. They could not be more mistaken.

Complete liberty for all means liberty for none except the most

powerful.

And yet the law does not by itself assure us liberty.

Something more is needed. This is a lesson mankind has never

learned, but has never quite forgotten. The spirit of liberty

is the spirit which seeks to understand the minds of other

men and women; the spirit of liberty is the spirit which weighs

their interests alongside its own without bias; the spirit of

liberty remembers that not even a sparrow falls to earth

unheeded. This is the spirit of an America which has never

been, and which may never be; nay, which never will be except

as the conscience and courage of Americans create it; yet...

the spirit which lies hidden in some form in the aspirations

of us all.

Unquestionably, our most challenging commitment in

the present domestic crisis is the widespread disregard for

this most important concept of law and order, and we cannot

be condescending of anarchists. We cannot preach law and

order and justice during the week and tolerate riot on weekends.

We must recognize that there is no man or women who is entitled

to disrupt orderly processes. Offenders should be dealt with,

and dealt with harshly.

The First Amendment of the United States Constitution

creates no right to do what one wishes -- only the right to

express one's beliefs. It is time that we speak out against

those persons, no matter how well-meaning or highly motivated,

who condone criminal actions under the guise of civil disobedience.

Abraham Lincoln magnificently stated the proposition

in the following words:

"Let every man remember that to violate

the law is to trample on the blood of his

father and to tear the charter of his chil-

dren's liberty. Let reverence for the law

be breathed by every American mother to the

lisping babe that prattles on her lap; let

it be taught in schools, in seminaries and

in colleges; let it be written in primers,

spelling books and in almanacs; let it be

preached from the pulpit; proclaimed from

legislative halls and enforced in courts

of justice; and, in short, let it become the

political religion of the nation, and let

the old and young, the rich and the poor,

the grave and the gay, of all sexes and

tongues and colors and conditions, sacrifice

unceasingly upon its altars."

I thank you.

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 40

VOLUME III

ADDRESS OF: CHESTERFIELD SMITH, LAKELAND, FLORIDA.
BEFORE: JOHN.IMARSHALL BAR ASSOCIATION GAINESVILLE,
FLORIDA.
TITLE OF
ADDRESS: "SPECIALIZATION IN THE LAW WHITHER NOW?"
DATE OF.
DELIVERY: FRIDAY, OCTOBER 2, 1970 12:45 P.M.

RECOGNITION AND REGULATION OF SPECIALIZATION IN
THE PRACTICE OF LAW IS NOT A NEW SUBJECT FOR THE LEGAL
PROFESSION, NOR FOR THE AMERICAN BAR ASSOCIATION.
IN 1954, THE HOUSE OF DELEGATES ADOPTED A RESO-
LUTION APPROVING IN PRINCIPLE THE NECESSITY TO REGULATE
VOLUNTARY SPECIALIZATION IN THE VARIOUS FIELDS OF THE
PRACTICE OF THE LAW FOR THE PROTECTION OF THE PUBLIC AND
THE BAR; AND APPROVING THE PRINCIPLE THAT IN ORDER TO
ENTITLE A LAWYER TO RECOGNITION AS A SPECIALIST IN A
PARTICULAR FIELD, HE SHOULD MEET CERTAIN STANDARDS OF EX-
PERIENCE AND EDUCATION. THE IMPLEMENTATION OF THAT RESO-
LUTION WAS DELEGATED TO THE BOARD OF GOVERNORS, SUBJECT
TO FINAL APPROVAL BY THE HOUSE OF DELEGATES. THEREAFTER,
SEVERAL EFFORTS WERE MADE IN THE HOUSE OF DELEGATES TO
IMPLEMENT THAT RESOLUTION WITHOUT SUCCESS.
IN AUGUST 1967, THE COMMITTEE ON AVAILABILITY OF
LEGAL SERVICES RECOMMENDED TO THE HOUSE OF DELEGATES THAT
THE BOARD OF GOVERNORS RENEW ITS EFFORTS TO IMPLEMENT THE

1954 RESOLUTION PROVIDING FOR THE RECOGNITION AND REGULATION
OF VOLUNTARY SPECIALISTS IN THE VARIOUS FIELDS OF THE PRACTICE
OF THE LAW, AS A RESULT OF ACTION BY THE HOUSE OF DELEGATES
ON THAT RECOMMENDATION, THE BOARD OF GOVERNORS ESTABLISHED A
SPECIAL COMMITTEE ON SPECIALIZATION, DIRECTING IT TO ASSEMBLE
AND STUDY INFORMATION RELEVANT TO ALL ASPECTS OF VOLUNTARY
SPECIALIZATION, AND IF THE COMMITTEE SHOULD DETERMINE THAT THE
PROMULGATION OF A PLAN OF VOLUNTARY SPECIALIZATION WAS DESIRABLE,
TO PREPARE A PLAN IN VARIOUS FIELDS OF THE PRACTICE OF LAW
FOR THE CONSIDERATION OF THE BOARD OF GOVERNORS AND THE
HOUSE OF DELEGATES.
THAT COMMITTEE, UPON WHICH I SERVED FOR TWO YEARS
AS ITS CHAIRMAN, PRESENTED A RECOMMENDATION AND REPORT AT
THE 1969 MIDYEAR MEETING OF THE HOUSE OF DELEGATES HELD IN
CHICAGO WHICH WAS ADOPTED AND APPROVED.
WHILE RECOGNIZING THAT REGULATION OF SPECIALIZATION
IN THE LAW PRACTICE MAY INCREASE THE AVAILABILITY OF LEGAL
SERVICES TO THE GENERAL PUBLIC, THE REPORT OF THE COMMITTEE
ACKNOWLEDGED THAT SUCH REGULATION WILL ALSO CREATE CERTAIN
PROBLEMS FOR BOTH THE PUBLIC AND THE LEGAL PROFESSION. BASED
UPON THE RECOMMENDATION OF THE COMMITTEE, THE HOUSE OF DELEGATES
THERE CONCLUDED THAT THE DETERMINATION OF WHETHER TO PROMULGATE
A UNIFORM OR NATIONAL PLAN FOR THE REGULATION OF VOLUNTARY
LEGAL SPECIALIZATION SHOULD BE DELAYED UNTIL EXPERIMENTAL

-2-

PROGRAMS FOR THE REGULATION OF SPECIALIZATION HAVE BEEN CON-
DUCTED AT THE STATE LEVEL, TODAY I WILL ADVANCE WHAT I BELIEVE
TO BE THE MOTIVATING INFLUENCES WHICH LED THE HOUSE OF DELE-

GATES TO THAT CONCLUSION,
EVEN THOUGH MANY LAWYERS STILL AT LEAST PAY LIP

SERVICE TO THE CONCEPT THAT A LAWYER CAN BE A JACK OF ALL

LEGAL TRADES, IN FACT MODERN LAWYERS CANNOT BE FULLY PROFICIENT
AND EFFICIENT IN EVERY FIELD OF THE LAW, AND MOST LAWYERS NOW

CLEARLY ACCEPT THAT FACT BY SELF-IMPOSED RESTRICTIONS ON
THEIR OWN PRACTICE,
SOME DEGREE OF SPECIALIZATION IS PROPERLY AN EXISTING

NECESSITY OF MODERN LAW PRACTICE. SPECIALIZATION PERMITS THE

LAWYER TO MAKE THE MOST EFFICIENT USE OF HIS TIME, SKILLS,

AND KNOWLEDGE. THE COMPLEXITY OF OUR SOCIETY AND THE INCREASING
PARTICIPATION THEREIN BY GOVERNMENT MAKE IT CLEAR THAT NO INDIVI-

DUAL LAWYER WILL EVER AGAIN BE PROFICIENT IN THE PERFORMANCE
OF ALL LEGAL TASKS, OUR EVER-EXPANDING ECONOMY WILL INEVITABLY
LEAD TO AN EVER-INCREASING PATTERN OF SPECIALIZATION BY

PRACTICING LAWYERS IN A LIMITED NUMBER OF THE VARIOUS FIELDS
OF THE LAW PRACTICE. AN INCREASE IN THE NUMBER OF LAWYERS WHO

SPECIALIZE IN AND OF ITSELF WOULD IMPROVE THE OVERALL QUALITY

OF THE TOTAL SERVICES RENDERED BY LAWYERS TO THEIR CLIENTS,
SIMPLY BECAUSE THOSE LAWYERS WHO SPECIALIZE WILL HAVE AN

OPPORTUNITY TO CONCENTRATE THEIR EXPERIENCE AND THEIR CONTINUING
LEGAL EDUCATION.

-3-

WHILE SPECIALIZATION IN THE PRACTICE OF LAW MAY

THUS IMPROVE THE QUALITY OF LEGAL SERVICES RENDERED TO HIS

CLIENTS BY THE PARTICULAR LAWYER THUS SPECIALIZING, SPECIALIZA-

TION IS NOT SYNONYMOUS WITH EXPERTNESS. THE CERTIFIED SPECIALIST

MUST STILL BE A LAWYER AND NOT A MERE LEGAL TECHNICIAN. A

COMPETENT LAWYER IS NOT REQUIRED TO KNOW THE LAW WITHOUT

RESEARCH; HE MUST HAVE THE ABILITY TO FIND AND EVALUATE THE

LAW. EVEN A TRUE EXPERT, WITH SUBSTANTIAL REPETITIVE EXPERIENCE

IN A GIVEN FIELD, WILL RARELY IF EVER, GIVE A FIRM COMMITMENT

AS TO THE LAW ON A PARTICULAR POINT WITHOUT RESEARCH, UNLESS

HIS RECENT EXPERIENCES CONTAIN THE ANSWER. HIS ADVANTAGE

ARISES PRIMARILY FROM THE SHORTER RESEARCH TIME REQUIRED, AS
WELL AS FROM HIS EXPERIENCES. ONE BECOMES A REAL EXPERT ONLY

BY BOTH EXPERIENCE AND CONSTANT STUDY IN A PARTICULAR FIELD OR
FIELDS OF THE LAW PRACTICE EXTENDING OVER A PERIOD OF SEVERAL

YEARS, AND NOT BY CERTIFICATION AS A SPECIALIST.

IF A LAWYER IS TO SPECIALIZE IN ONE FIELD OF THE

LAW, IT IS HARDLY ARGUABLE THAT HE SHOULD MEET CERTAIN

MINIMUM STANDARDS OF EXPERIENCE AND EDUCATION IN THAT ONE

FIELD OF THE LAW. CERTIFICATION BY A COMPETENT AUTHORITY

MUST BE AN INTEGRAL PART OF ANY COMPLETE PLAN OR PROGRAM

ULTIMATELY PROMULGATED TO REGULATE SPECIALIZATION IN THE

LAW PRACTICE. A BAR-REPRESENTED EXPERTNESS, OR EVEN A BAR-

COUNTENANCED SELF-CERTIFICATION OF EXPERTNESS, THAT DOES
NOT IN FACT EXIST, WOULD BE FAR WORSE IN ITS EFFECT UPON

THE PUBLIC IMAGE OF THE ORGANIZED BAR THAN ANY OF THE PRESENT

DETRIMENTS TO THAT IMAGE ATTRIBUTABLE TO THE NON-REGULATION

OF SPECIALIZATION. CERTAINLY ALL LAWYERS RECOGNIZE THAT THE

ATTEMPTED PERFORMANCE OF PROFESSIONAL SERVICES BY LAWYERS

WHO ARE INDIVIDUALLY INCOMPETENT TO PERFORM SUCH SERVICES

BRINGS DISFAVOR ON THE LEGAL PROFESSION AS A WHOLE.

SELF-RECOGNITION OF SPECIAL PROFICIENCY WHICH IS

NOT VERIFIED AND FACTUAL IS NOT THE ULTIMATE ANSWER, NOR IS
IT EVEN NOW AN ACCEPTABLE SUBSTITUTE FOR CERTIFICATION. THE

MAJOR DIFFICULTY WITH SELF-CERTIFICATION, APART FROM THE CASE
OF THE LAWYER OF LITTLE INTEGRITY AND NO ACTUAL EXPERTISE

WHO WILL CLAIM EXPERTISE FOR SELF-AGGRANDIZEMENT, IS WITH

THE LAWYER WHO HONESTLY BELIEVES THAT HE IS QUALIFIED FOR

SPECIALIZED PRACTICE BUT WHO WOULD BE RATED AS A NOVICE BY

THOSE LAWYERS CLEARLY ENTITLED TO ACCREDITATION AS EXPERTS.

IF THE PUBLIC IMAGE OF THE ORGANIZED BAR IS TO BE UNBLEMISHED,

LAWYERS AS A GROUP MUST EXERCISE A HIGH DEGREE OF RESPON-

SIBILITY TO THOSE FAR LESS INFORMED MEMBERS OF THE GENERAL

PUBLIC SEEKING A LAWYER AND WHO RELY OR MAY TEND TO RELY

UPON WHAT MAY BE A FALSE CLAIM OF SPECIAL PROFICIENCY,
LAWYERS WHO UNDERTAKE LEGAL SERVICES WHICH THEY

ARE INDIVIDUALLY INCOMPETENT TO PERFORM LEND CREDENCE TO THE
CLAIM OF LAY GROUPS THAT ATTEMPTS BY THE BAR TO DETER THE

UNAUTHORIZED PRACTICE OF LAW BY SPECIALIZED LAYMEN IS

-5-

MOTIVATED SOLELY BY THE ECONOMIC SELF-INTEREST OF THE COM-

PLAINING LAWYERS. IF THE ORGANIZED BAR CAN PROVIDE AN

EFFECTIVE METHOD WHEREBY THE PUBLIC, OR GENERAL PRACTITIONERS

ON BEHALF OF THEIR CLIENTS, CAN IDENTIFY AND SELECT COMPE-

TENT LEGAL SPECIALISTS, THE CHANCE THAT PERSONS NEEDING

LEGAL SERVICES WILL TURN TO WELL-PUBLICIZED SPECIALIZED

LAYMEN, RATHER THAN TO LAWYERS, WILL BE MINIMIZED.

IT IS EXTREMELY IMPORTANT THAT THE LAWYERS WHO

PRESENTLY SPECIALIZE DO NOT DEVELOP INTO NARROW AND AUTONOMOUS

SELF-POLICING UNITS. THE EXPERIENCE OF THE MEDICAL PRO-

FESSION IN THAT REGARD DEMONSTRATES THAT THIS POSSIBILITY

IS A REAL AND PRESENT DANGER. A SIMILAR FRACTIONALIZATION

OF THE LEGAL PROFESSION COULD ULTIMATELY BE DETRIMENTAL TO

BOTH THE PUBLIC AND THE SPECIALIZED LAWYER INTEREST GROUPS,

AND EXTREME VIGILANCE ON THE PART OF THE ORGANIZED BAR IS

WARRANTED, WHETHER SPECIALIZATION BE REGULATED OR UNREGULATED,

IN ORDER THAT GENERAL SUPERVISION OF ALL SPECIALIZED LAWYER

INTEREST GROUPS IS EXERCISED BY THE ORGANIZED BAR AS A WHOLE.

I AM CONVINCED THAT ANY SPECIFIC PROGRAM OF REGU-

LATION WILL BE OPPOSED BY SOME LAWYERS, SOME LAWYERS WILL

OBJECT TO THE TIME AND EFFORT THEY FEEL WILL BE INVOLVED

IN OBTAINING CERTIFICATION. OTHER LAWYERS FEAR THAT THEY

WILL NOT BE ABLE TO QUALIFY IN A PARTICULAR FIELD OF THE LAW

IN WHICH THEY ARE INTERESTED, ESPECIALLY IF THE CERTIFICATION

-6-

PROCEDURE IMPOSES HIGH STANDARDS. MANY GENERAL PRACTITIONERS

WHO DO NOT SPECIALIZE FEAR A LOSS OF PRACTICE TO THOSE WHO

WILL QUALIFY AS LEGAL SPECIALISTS AND WHO ARE SO CERTIFIED.

A FEW LAWYERS PRESENTLY SPECIALIZING ARE APPREHENSIVE THAT

THEY MAY BE REQUIRED BY REGULATION TO GIVE UP WORK WHICH
THEY ARE NOW DOING IN LEGAL AREAS OUTSIDE OF THEIR OWN

SPECIALTY. MANY LAWYERS, WHETHER SPECIALISTS OR GENERALISTS,

ALSO FEAR THAT A PROGRAM OF CERTIFICATION WOULD TEND TO
CREATE NARROW SPECIALTIES AND THUS MAKE IT MORE DIFFICULT

TO ASSURE ADEQUATE SERVICE TO CLIENTS IN AREAS WHICH

OVERLAP SEVERAL SPECIALTIES.

THOSE OBSTACLES, FEARS, AND OBJECTIONS MUST BE

CAREFULLY CONSIDERED. SUCH QUESTIONS AS WHAT IS TO BE THE

CERTIFYING AUTHORITY, WHAT STANDARDS ARE TO BE ESTABLISHED,

WHAT SHOULD BE DONE ABOUT EXISTING SPECIALISTS FOR WHOM IT

MIGHT BE AN UNREASONABLE BURDEN TO IMPOSE THE SAME STRICT

CERTIFICATION REQUIREMENTS, AND WHAT MEANS ARE TO BE UTILIZED
TO INFORM THE GENERAL PUBLIC OF THE QUALIFICATIONS OF A

CERTIFIED LEGAL SPECIALIST* ARE AREAS OF GREAT CONCERN TO

ANYONE.
IN CONSIDERING THE MERITS OF OFFICIAL RECOGNITION

AND REGULATION OF SPECIALIZATION IN THE LAW PRACTICE, THE

BENEFITS AND DETRIMENTS WHICH MIGHT BE OBTAINED THEREFROM
MUST BE ANALYZED IN THE CONTEXT OF SPECIFIC PROGRAMS. THE

-7-

LIMITATIONS WHICH MIGHT BE PLACED UPON PRACTICE BY A CERTI-

FIED SPECIALIST SHOULD BE CONSIDERED. UNDER EXISTING LAW,

THE STANDARD OF CARE REQUIRED FOR LAWYERS OF CERTIFIED STATUS

WOULD OF COURSE BE INCREASED WITH ADDITIONAL EXPOSURE TO

LIABILITY FOR ERROR AND OMISSIONS.

THE NATURE OF LEGAL PRACTICE DIFFERS FROM STATE

TO STATE, AND THERE ARE SIGNIFICANT DIFFERENCES AMONG THE
STATES IN BOTH SUBSTANTIVE AND PROCEDURAL LAW. THE PRACTICE

OF LAW IS NOW REGULATED ALMOST EXCLUSIVELY WITHIN THE VARIOUS

STATES, BOTH INITIAL ADMISSION AND PROFESSIONAL DISCIPLINE

ARE HANDLED AT THE STATE LEVEL. REGULATION OF SPECIALIZATION

IS INTRINSICALLY RELATED TO THOSE OTHER ASPECTS OF THE

REGULATION OF THE PRACTICE OF LAW. THE FACT THAT THE POWER

TO REGULATE THE LEGAL PROFESSION NOW EXISTS ONLY AT THE STATE

LEVEL COMPELLED ME TO BELIEVE THAT STATE LEVEL REGULATION

OF SPECIALIZATION WAS THE ONLY WAY IN WHICH THIS REFORM

COULD EVER BE ACHIEVED. STATE PARTICIPATION CERTAINLY IS

AN OBVIOUSLY INDISPENSABLE INGREDIENT OF ANY ACCEPTABLE

PLAN, I SUBMIT THAT IF REGULATION IS PLACED AT THE STATE
LEVEL, THE REGULATORY BODY WILL BE MUCH MORE FLEXIBLE AND

RESPONSIVE IN REACTING TO EMERGING PROBLEMS THAN IF THE

REGULATORY BODY IS PLACED AT THE NATIONAL LEVEL.

NO MATTER HOW MUCH CARE IS NOW DEVOTED TO A

SPECIFIC PLAN OF REGULATION OF SPECIALIZED LAW PRACTICE,

-8-

SUCH PROGRAM CANNOT POSSIBLY PROVIDE AGAINST MANY PRACTICAL
PROBLEMS WHICH WILL DEVELOP. PITFALLS WILL INEVITABLY
OCCUR, MEANS OF ADJUSTING THOSE DEFICIENCIES WILL HAVE TO
BE WORKED OUT, AND THE PROGRAM ULTIMATELY ADOPTED WILL
UNQUESTIONABLY HAVE TO BE MODIFIED BY EXPERIENCE, AS TIME
GOES ON, A BODY OF EXPERIENCE WILL DEVELOP WHICH WILL INEVITABLY
LEAD TO BETTER CRITERIA FOR PROVIDING QUALITY LEGAL SERVICES
IN SPECIALIZED AREAS.
IT IS ONLY WHEN THOSE DEVELOPMENTS HAVE OCCURRED
THAT CONSIDERATION SHOULD BE GIVEN TO THE SUBSIDIARY ISSUES

WHICH PRESENTLY OCCASION SO MUCH DIALOGUE AMONG LAWYERS
DEBATING THE "HOW" OF LEGAL SPECIALIZATION. THE ORGANIZED
BAR NEEDS EXPERIENCE AT ALL LEVELS BEFORE FINAL POSITIONS

ARE TAKEN,
I AM CONVINCED THAT SOME OF THE STANDARD ARGUMENTS
PRESENTED AGAINST SPECIFIC PROGRAMS OF REGULATION OF SPECIALI-
ZATION IN THE LAW PRACTICE ARE REAL, BUT I ALSO BELIEVE THAT
MANY OF THEM ARE ONLY IMAGINED. I HAVE ALSO CONCLUDED THAT
THE NEED FOR REGULATED SPECIALIZATION IN MANY STATES IS
MINIMAL, BUT IN OTHER STATES, I BELIEVE THAT THE PUBLIC
INTEREST INDICATES THAT SOME ACTION ON THE MATTER BE TAKEN
BY THE ORGANIZED BAR. IT APPEARS TO ME THAT IT IS A MATTER

FOR EACH STATE TO DECIDE FOR ITSELF IN VIEW OF ITS PARTICULAR
CIRCUMSTANCES AND ECONOMY.

-9-

IN ENCOURAGING THOSE STATES WHICH WISH TO DO SO TO
SEEK SOLUTIONS TO THE NUMEROUS PRACTICAL AND THEORETICAL PRO-
BLEMS INVOLVED IN LEGAL SPECIALIZATION, THE AMERICAN BAR
ASSOCIATION WAS NOT DECIDING WHETHER THE LEGAL PROFESSION
WILL HAVE SPECIALIZATION, SPECIALIZATION IS ALREADY HERE,
AND IT WILL INEVITABLY INCREASE. THE ISSUE WAS ONLY WHETHER
A PLAN FOR SPECIALIZATION IN THE PRACTICE OF LAW WOULD BE
RECOMMENDED ON A NATIONAL BASIS AT THAT TIME. IT WAS THE
CONCLUSION OF THE HOUSE OF DELEGATES THAT NOW IS NOT THE
TIME TO TAKE SUCH ACTION,

THERE ARE THOSE WHO ARE DISAPPOINTED THAT THE
AMERICAN BAR ASSOCIATION DID NOT TAKE A BOLD LEAP FORWARD.
OTHERS ARE EQUALLY VEXED BECAUSE IT DID NOT SUMMARILY REJECT
FURTHER CONSIDERATION OF ANY CHANGE IN THIS AREA OF THE LEGAL
PROFESSION. IN ANSWER TO BOTH CONTENTIONS, I SUGGEST THAT
THE COURSE OF ACTION ADOPTED TAKES FULL ADVANTAGE OF THE
BENEFICIAL WAY THE ORGANIZED BAR FUNCTIONS IN THIS COUNTRY,
THE AMERICAN BAR ASSOCIATION, AS AN INSTRUMENT OF NATIONWIDE
LEADERSHIP FOR LAWYERS, SHOULD AND MUST BE CAUTIOUS IN ALTERING
OR CHANGING THE STRUCTURE OF THE LEGAL PROFESSION. STATE BARS
HAVE MANY TIMES IN THE PAST SERVED AS LABORATORIES OF CHANGE.
I PERSONALLY BELIEVE THAT STATE BARS HAVE LED THE WAY TO MANY
OF THE MORE POSITIVE ADVANCES ACHIEVED BY THE ORGANIZED BAR IN
RECENT YEARS, CERTAINLY, ONE OF THE MORE FAVORABLE ATTRIBUTES

-10-

OF OUR SYSTEM OF BAR ORGANIZATION IS THAT A SINGLE COURAGEOUS
STATE BAR MAY, IF THE MEMBERS THEREOF CHOOSE, SERVE AS A LABORA-
TORY AND TRY NOVEL, POLITICAL, SOCIAL AND ECONOMIC EXPERIMENTS
WITHOUT RISK TO OTHER STATE BARS, OR TO THE AMERICAN BAR
ASSOCIATION AS AN ENTITY.
SUCH EXPERIMENTAL OR PILOT PROGRAMS WILL BE USEFUL
WHETHER THE PROGRAMS ARE SUCCESSFUL OR UNSUCCESSFUL. THE
EXPERIENCE DEVELOPED BY DIVERSE APPROACHES MAY PERMIT THE
RECOMMENDATION OF CRITERIA FOR A FLEXIBLE BUT MEANINGFUL
SYSTEM FOR THE RECOGNITION OF SPECIALTIES; OR MAY LEAD TO
THE FINAL CONCLUSION THAT NO EFFECTIVE SYSTEM CAN BE DEVISED
THAT WILL HAVE MORE ADVANTAGES THAN DISADVANTAGES.
FOR THE FIRST TIME IN ITS HISTORY, THE AMERICAN
BAR ASSOCIATION NOW HAS A COMMITTEE WITH GENERAL JURISDICTION
OF ALL MATTERS PERTAINING TO LEGAL SPECIALIZATION. THAT
COMMITTEE WAS DIRECTED TO COLLECT DATA, MAKE SURVEYS OF
BOTH THE PUBLIC AND THE LEGAL PROFESSION, CONDUCT STUDIES

AND GENERALLY TO ASSIST STATE BAR ASSOCIATIONS IN DEVELOPING
PROGRAMS RELATING TO SPECIALIZATION IN THE LAW PRACTICE.

IN PARTICULAR, THE COMMITTEE WAS GIVEN THE RESPONSIBILITY
OF RECOMMENDING MODEL PLANS OF SPECIALIZATION FOR ADOPTION
BY THE STATES, AND A NATIONAL PLAN FOR SPECIALIZATION IF
THE PRACTICABILITY AND DESIRABILITY OF SUCH PLANS BECOME
APPARENT AT SOME FUTURE TIME. So, FOR THE FIRST TIME,

-1.-

NATIONWIDE LEADERSHIP IN THE TROUBLESOME FIELD OF LEGAL
SPECIALIZATION IS AVAILABLE.
WHILE ADMITTEDLY THAT ACTION IS ONLY A FIRST
STEP, ITS IMPORTANCE IS TWO-FOLD. FIRST, IT DOES COMMIT
THE AMERICAN BAR ASSOCIATION TO SEEK A SOLUTION TO ONE OF
THE MOST VEXING AND TROUBLESOME AREAS IN THE STRUCTURING OF
THE ORGANIZED BAR, THE REGULATION OF LEGAL SPECIALIZATION.
SECOND, IT DETERMINES THAT THE APPROACH TAKEN IN SOLVING THE
PROBLEM OF LEGAL SPECIALIZATION BY THE AMERICAN BAR ASSOCIA-
TION WILL BE EVOLUTIONARY AND NOT REVOLUTIONARY.
THE PLAN IS WORKING,. SEVERAL STATES ARE ALREADY
ACTIVELY CONSIDERING WHETHER OR NOT THEY SHOULD PROMULGATE
THEIR OWN PLANS FOR THE CERTIFICATION AND REGULATION OF LEGAL
SPECIALISTS. AMONG THOSE STATES ARE CALIFORNIA, COLORADO,
FLORIDA, MARYLAND, MICHIGAN, MINNESOTA, NEW JERSEY, VIRGINIA,
TEXAS AND WISCONSIN, IN FACT, THIRTY STATE BAR ASSOCIATIONS
HAVE COMMITTEES STUDYING THE MATTER OF LEGAL SPECIALIZATION.
THE SPECIALIZATION PLAN PROPOSED BY THE BAR OF THE
STATE OF CALIFORNIA HAS BEEN TENTATIVELY SELECTED BY THE ABA
AS A PROPER VEHICLE FOR EXPERIMENTATION.
THE CALIFORNIA PROGRAM, WHICH HAS BEEN FINALLY ADOPTED
BY THE BOARD OF GOVERNORS OF THE STATE BAR OF CALIFORNIA, ESTAB-
LISHES A CALIFORNIA BOARD OF LEGAL SPECIALIZATION. INITIALLY,
THE FIVE-YEAR EXPERIMENTAL PROGRAM WILL BE CONFINED TO THREE

-12-

AREAS OF LAW; THAT IS: (1) CRIMINAL LAW; (2) WORKMEN'S COM-
PENSATION LAW; AND (3) TAX LAW. ADVISORY COMMISSIONS ARE TO
BE SET UP IN EACH FIELD.
THAT PROGRAM WILL BE PUT INTO ACTUAL OPERATION WHEN
AMENDMENTS TO THE RULES OF PROFESSIONAL CONDUCT HAVE BEEN
APPROVED BY THE SUPREME COURT OF CALIFORNIA. THE IMPLEMENTATION
OF THIS PLAN DURING THIS CALENDAR YEAR WILL NOW INSURE THAT
BOTH THE AMERICAN BAR ASSOCIATION AND INTERESTED STATE BAR
ASSOCIATIONS WILL HAVE AVAILABLE FOR THE FIRST TIME FACTS
WHICH POINT OUT THE DANGERS AND PITFALLS WHICH INEVITABLY
WILL BE ENCOUNTERED, AND WHICH ANSWER OR REFUTE THE EXISTING
ARGUMENTS, BOTH FOR AND AGAINST, THE REGULATION OF SPECIALI-
ZATION IN THE LAW PRACTICE.
THE MICHIGAN COMMITTEE ON SPECIALIZATION HAS ALSO
SUBMITTED A FINAL REPORT RECOMMENDING A PILOT PROGRAM TO THE
BOARD OF GOVERNORS OF THE STATE BAR OF MICHIGAN. THE BOARD
OF GOVERNORS OF THE STATE BAR OF MICHIGAN CURRENTLY IS
SOLICITING THE VIEWS OF MICHIGAN LAWYERS BEFORE TAKING FINAL
ACTION ON THE REPORT. THAT PROGRAM, IF ADOPTED, WILL ULTIMATELY
POTENTIALLY COVER ALL AREAS OF LAW, BUT IT WILL BE CONFINED
INITIALLY TO TWO SPECIALTIES; THAT IS, PROBATE AND LABOR LAW.
THE COMMITTEE OF THE STATE BAR OF MICHIGAN WHICH DEVISED THE
PLAN ESTIMATES THAT IT IS MOST LIKELY THAT AT LEAST ONE YEAR
WILL ELAPSE BEFORE THE PLAN CAN BE FULLY IMPLEMENTED.

-13-

THE COMMITTEE ON SPECIALIZATION OF THE STATE BAR
OF TEXAS HAS JUST RECENTLY RECOMMENDED THAT A PILOT PROGRAM
BE DEVELOPED IN THAT STATE. I AM ADVISED THAT IT WILL BE
ABOUT A YEAR FROM NOW BEFORE SUCH A PROGRAM IS DEVELOPED
AND PRESENTED TO THE BOARD OF GOVERNORS AND THE SUPREME
COURT OF TEXAS,
THE COLORADO BAR ASSOCIATION COMMITTEE ON SPECIALIZA-
TION HAS PRESENTED TO THE GOVERNING BOARD OF THE COLORADO BAR
A MOST ADMIRABLY DRAFTED PILOT PROGRAM.
THE FLORIDA BAR COMMITTEE SHOULD DETERMINE WITHIN
THE NEXT SEVERAL MONTHS WHETHER IT WILL RECOMMEND TO THE BOARD
OF GOVERNORS OF THE FLORIDA BAR THAT FLORIDA EMBARK UPON A
PILOT PROJECT.
THE AMERICAN BAR ASSOCIATION INTENDS ULTIMATELY TO
MAKE FINAL SELECTION OF A TOTAL OF THREE (3) STATE PILOT
PROGRAMS WHEN AND AS SUCH PROGRAMS HAVE BEEN IMPLEMENTED.
AFTER SUCH FINAL SELECTIONS, THE AMERICAN BAR ASSOCIATION
WILL RECOMMEND THAT ALL OTHER STATE BAR ASSOCIATIONS (EXCEPT
THOSE DESIGNATED FOR EXPERIMENTAL PROGRAMS) AWAIT THE RESULTS
OF AN EVALUATION OF THOSE THREE PROGRAMS, SINCE THE AMERICAN
BAR ASSOCIATION FEELS THAT IT IS NOT DESIRABLE FOR A LARGE
NUMBER OF STATES TO EMBARK UPON EVEN EXPERIMENTAL PROGRAMS IN
SPECIALIZATION BEFORE UNIFORM STANDARDS CAN BE ESTABLISHED
LEST UNNECESSARILY DIVERGENT PROGRAMS BECOME PREMATURELY

-14-

CRYSTALIZED. THE AMERICAN BAR ASSOCIATION WILL EVALUATE
THESE PILOT PROGRAMS ON SPECIALIZATION, BOTH FROM THE STAND-

POINT OF THEIR BENEFITS AND THEIR DETRIMENTS, AND THE RESULTS
WILL THEN BE MADE AVAILABLE TO ALL STATE BAR ASSOCIATIONS

AND OTHER INTERESTED GROUPS.
WHILE I CANNOT NOW PREDICT WITH ANY CERTAINTY THAT
THE ACTION TAKEN BY THE AMERICAN BAR ASSOCIATION LAST YEAR

WILL EVER LEAD TO THE DEVELOPMENT OF A NATIONAL PLAN OF LEGAL
SPECIALIZATION, I DO BELIEVE, AND I DO PREDICT, THAT WITHIN
THE NEXT FEW YEARS THE ACTION THERE TAKEN WILL PERMIT A DETER-

MINATION OF WHETHER IT IS BEST THAT LEGAL SPECIALIZATION BE
REGULATED OR BE UNREGULATED. THAT COURSE APPEARS TO ME TO

BE PROPER. I HOPE THAT THE DEVELOPMENT OF PILOT PROGRAMS
IN THE REGULATION OF LEGAL SPECIALIZATION WILL RECEIVE THE
SUPPORT OF LAWYERS THROUGHOUT THE UNITED STATES, REGARDLESS

OF WHETHER THEY NOW FAVOR OR NOW OPPOSE THE CERTIFICATION OF
LEGAL SPECIALISTS. EVEN THOUGH A STATE BAR ASSOCIATION
DETERMINES THAT IT IS NOT NOW INTERESTED IN THE CONDUCT OF AN
EXPERIMENTAL PROGRAM OF ITS OWN, IT SEEMS CRYSTAL CLEAR TO ME

THAT IT SHOULD AT THE MINIMUM HAVE A COMMITTEE OF LAWYERS WHO
ARE FOLLOWING DEVELOPMENTS IN THIS AREA AND WHO ARE CHARGED
WITH THE RESPONSIBILITY OF EVALUATING THE RESULTS OBTAINED IN

THOSE STATES WHO DO CONDUCT SUCH EXPERIMENTAL PROGRAMS.
THANK YOU.

-15-

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 41

VOLUME III

CHESTERFIELD SMITH

AMERICAN BAR ASSOCIATION

PHI DELTA PHI HOMECOMING BREAKFAST

GAINESVILLE, FLORIDA

DATE OF DELIVERY:

SATURDAY, OCTOBER 31, 1970
7:45 A.M.

TITLE:

TIME:

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BEFORE:

ADDRESS OF:

IT IS GENERALLY ACKNOWLEDGED THAT OUR SOCIETY

IS FACING CHALLENGES TO PUBLIC ORDER AND TO THE REALIZATION

OF AMERICAN IDEALS GREATER THAN ANY SINCE THE CIVIL WAR.

OF PARAMOUNT SIGNIFICANCE TO THOSE OF US WHO HAVE DEDICATED

OURSELVES TO THE LEGAL PROFESSION, THE RULE OF LAW FACES

STRESSES AND STRAINS UNPARALLELED IN THE HISTORY OF OUR

.REPUBLIC.

PEOPLE FROM ALL WALKS OF LIFE, AGGRIEVED AND

FRUSTRATED AT WHAT THEY REGARD AS THE FAILURE OF OUR

LEGAL, ECONOMIC, AND SOCIAL SYSTEMS TO FULFILL THEIR

EXPECTATIONS OF EQUAL JUSTICE AND OPPORTUNITY, ARE

RESORTING INCREASINGLY TO VIOLENCE AND DISORDER IN

PREFERENCE TO ORDERLY PROCESSES OF CHANGE.

TO THOSE WHO BELIEVE THAT LAW IS THE ONLY

FOUNDATION OF TRUE LIBERTY, JUSTICE, AND EQUALITY OF

OPPORTUNITY, THIS GROWING REJECTION OF THE RULE OF LAW

IS A SOURCE OF ACUTE DISTRESS. PERHAPS EVEN MORE DIS-

TRESSING AND FRIGHTENING IS THE CYNICAL CONCLUSION

OF A TINY BUT HIGHLY VOCAL AND ACTIVE MINORITY THAT THE

AMERICAN DREAM IS ENDED AND THAT SOCIAL JUSTICE CAN BE

BUILT ONLY UPON THE RUINS OF THE DEMOCRATIC SYSTEM,
CENTRAL TO THE CRISIS OF OUR TIME ARE THE

RECURRING VIOLATIONS OF THE HUMAN DIGNITY OF PEOPLE WHO

LIVE IN OUR URBAN AREAS, .THESE VIOLATIONS TAKE MANY
FORMS DISCRIMINATION, CRIME, INADEQUACY OF EDUCATION

AND EMPLOYMENT, THEY HAVE MANY CAUSES PUBLIC INDIF-
FERENCE, ARCHAIC GOVERNMENT INSTITUTIONS; AND INSUFFICIENCY

OF TAX RESOURCES, OUR COMPLEX SOCIETY IS PREVADED BY

SIMILAR IF LESS EVIDENT PROBLEMS,
THOSE WHO BELIEVE IN THE DEMOCRATIC SYSTEM

.AND THE RULE OF LAW TEND TO SEE AND PERHAPS FOR TOO
LONG HAVE SEEN ONLY THE ACHIEVEMENTS OF THE SYSTEM
AND NOT ITS FAILURES. THE DISSENTERS OVERLOOK THE

SYSTEM'S VERY REAL ACCOMPLISHMENTS AND SEE ONLY THAT
IT THUS FAR SEEMS TO HAVE FAILED IN MATTERS THEY DEMA

TO BE OF VITAL IMPORTANCE.
UNFORTUNATELY, A MOVEMENT TOWARD REJECTION
OF THE RULE OF LAW CANNOT BE REVERSED MERELY BY THE

MOUTHING OF PLATITUDES ABOUT HOW FAR THE DEMOCRATIC
SYSTEM HAS COME OR BY THE PROLIFERATION OF PROMISES

ABOUT WHAT THE SYSTEM MAY IN DUE TIME ACCOMPLISH, THE

MAN WHOSE FRUSTRATIONS LEAD HIM TO REJECT THE RULE OF

LAW MAY NO LONGER BE WILLING TO WAIT FOR UUE IIIE, AND

-2-

xl...--...~.,.,-,n.I;-; ..~-~7..;~ '. ....'::.:i~?fr~.T~(~...;':...::~....:: ....~'C:~7. ;-:~-41*:C~:~~~~I--:-:~:~~I:~~i~:~7J:

HE IS APT TO SEE THE SYSTEM S ACHIEVEMENTS LARGELY IN

TERMS OF PROTECTING ONE MAN'S PROPERTY AT THE EXPENSE OF

ANOTHER MAN'S SPIRIT. A POINT SEEMS TO HAVE BEEN REACHED
IN THE NATION'S DEVELOPMENT, THEREFORE, WHERE THOSE WHO
STILL CHERISH THE AMERICAN DREAM HAVE BUT ONE REAL ALTER-

NATIVE, AND THAT PERHAPS FOR ONLY.A VERY LITTLE WHILE

LONGER: TO MAKE THE DEMOCRATIC SYSTEM REALLY WORK TO

ACHIEVE GENUINE SOCIAL JUSTICE FOR ALL AMERICANL. LAW
AND LEGAL INSTITUTIONS ARE INCONSPICUOUS WHEN SOCIETY

IS AT PEACE. THEIR INADEQUACIES, AS WELL AS THE IMPOR-
TANCE OF THEIR FUNCTIONS, BECOME CLEAR ONLY IN TIMES OF

TROUBLE.
IIAKING THE LEGAL SYSTEM WORK SEEMS TO ME TO A

LARGE DEGREE TO BE A MATTER OF RELEVANCE, THOSE AREAS
WHERE THE SYSTEM HAS THUS FAR FAILED SEEM TO BE AREAS

WHERE THE SYSTEM'S ANSWERS ARE NOT"ENTIRELY RELEVANT TO
SOCIETY'S ESSENTIAL PROBLEMS. THE QUESTION OF RELEVANCE
HAS, OR SHOULD HAVE, A SPECIAL SHARPNESS FOR LAWYERS AT

THIS TIME, I SUGGEST THAT A CONTINUING FAILURE ON THE
PART OF THE ORGANIZED BAR TO EXAMINE THE LAWYERS' FUNCTIONS

AGAINST THE BACKGROUND OF TODAY'S PROBLEMS AND TO ADJUST

THEM ACCORDINGLY IS A SURE PATH TO PROFESSIONAL OBSOLESCENCE.

EVEN LAWS AND LEGAL INSTITUTIONS THAT ARE

GENUINELY RESPONSIVE TO ESSENTIAL PROBLEMS MAY NEVERTHELESS

-3-

urrc*r~*n*~.r~--~~-.-*..illrrr*9*~N I:)i--j:::*-Jrr~~~;.~....._~..... :...~.. -:~~~rcl~~~-r' ~~ `"~' "'~"''~''`~' `~' """''"";`l~~'"'i- I;.:ii --,;~ri---;----~'~` ;'

BE IRRELEVANT TO THOSE PROBLEMS IF THE LEGAL SERVICES

NECESSARY TO MAKE THEM OPERATIVE ARE NOT READILY OBTAINABLE

BY ALL WHO MIGHT BENEFIT FROM THEM. IF LAWYERS ARE TO

CONTINUE TO HAVE AT LEAST SOME RELEVANCE TO SOCIETY'S

ESSENTIAL PROBLEMS, PREVALENT QUESTIONS ABOUT THE PRO-

DUCTION AND DISTRIBUTION OF LAWYERS' SERVICES MUST BE

ANSWERED BY THE LEGAL PROFESSION ITSELF. THOSE QUESTIONS

CAN BE ANSWERED OR SO I BELIEVE THROUGH THE DIFFICULT
BUT SOMETIMES UNPLEASANT PROCESSES OF SELF-EXAMINATION,

SELF-CRITICISM, AND SELF-IMPROVEMENT, EVEN THOUGH SELF-

EXAMINATION. AND SELF-CRITICISM TEND TO BE MADE ESPECIALLY
DIFFICULT BY A MARKED HETEROGENEITY WITHIN THE BAR.
INDEED, THE LEGAL PROFESSION APPEARS IN MANY

WAYS TO BE A COALITION OF SEVERAL DIFFERENT GROUPS WITH

QUITE DISSIMILAR CHARACTERISTICS AND, IN SOME INSTANCES,

WITH CONFLICTING INTERESTS. GENERALLY SPEAKING, THE
LAWYER IN THE LARGE FIRM, WITH A PREDOMINANTLY BUSINESS

CLIENTELE, IS CLEARLY DIFFERENT FROM EITHER THE BIG-

CITY SOLO PRACTITIONER OR THE MEMBER OF A SMALL URBAN

FIRM WITH PREDOMINANTLY LOW- AND MIDDLE-INCOME INDIVIDUALS

AS CLIENTS. SO, TOO, SALARIED GOVERNMENT LAWYERS SEEM
TO HAVE SOME DISTINCTIVE CHARACTERISTICS AND PROBLEMS,

AS DO CORPORATION HOUSE COUNSEL AND LABOR UNION LAWYERS.

THE GENERAL PRACTITIONER IN THE SMALL COMMUNITY IS

-4j-

.A'..X't :'- .--**'"---s~'

DIFFERENT STILL FROM ALL OF THESE.
RECOGNITION OF THIS DIVERSITY OF PRACTICE

DOES NOT YET SEEM TO BE GENERAL WITHIN THE PROFESSION,
MANY LAWYERS CONTINUE TO INSIST ON THE FUNGIBILITY OF

MEMBERS OF THE BAR, AN INCREASINGLY UNREAL BUT PERSISTENT
VIEW FOUNDED UPON TRADITIONAL PREMISES THAT SEEM NO

LONGER TO BE ENTIRELY IN ACCORD WITH THE FACTS,
THE SETTING. FOR THE TRADITIONAL VIEW THE

SMALL TOWN WITH A SETTLED AND HOMOGENEOUS POPULATION,

WHERE EVERYONE KNEW EVERYONE ELSE IS NO LONGER TYPICAL
OF AMERICA, THE NATION'S POPULATION IS INSTEAD NOW

PREDOMINANTLY URBAN, ANONYMOUS, HETEROGENEOUS, ROOTLESS,
AND MOBILE.
SO, TOO, WITH THE ARCHETYPE OF THE TRADITIONAL

LAWYER THE SMALL-TOWN SOLO PRACTITIONER. HE BUILT
HIS.PRACTICE SLOWLY BUT SOLIDLY ON AN ACQUIRED REPUTATION

FOR INTEGRITY AND COMPETENCE. HE GAVE GRATUITOUS SERVICE
TO THE POOR AND EARNED AN AMPLE BUT WELL-DESERVED LIVING
FROM THE REST, ONE OF THE FEW LITERATE MEN IN TOWN, HE
BECAME THE TRUSTED AND HONORED COUNSELOR OF ALL.
BUT THE TRADITIONAL SMALL-TOWN LAWYER IS

BECOMING INCREASINGLY ATYPICAL OF THE LEGAL PROFESSION.
TODAY'S LAWYER MAY BE A MEMBER OF A LARGE LEGAL STAFF,

EITHER FOR A BIG CORPORATION OR FOR A GOVERNMENT AGENCY.

-5-

HE MAY BE EMPLOYED BY A LABOR UNION, EITHER ON SALARY

OR ON FULL-TIME RETAINER. HE MAY ENGAGE IN A SPECIALIZED

PRACTICE., EITHER AS A MEMBER,OF A LARGE GENERAL-PRACTICE
FIRM WITH PREDOMINANTLY BUSINESS CLIENTS, OR AS A

MEMBER OF A FIRM THAT HANDLES ONLY ONE KIND OF LEGAL
BUSINESS. EVEN THE LAWYER WHO DOES DRAW HIS CLIENTS

PRIMARILY FROM THE GENERAL PUBLIC IS USUALLY NO MORE

TO TODAY'S CONSTANTLY CHANGING URBAN POPULATION THAN

A NAME IN THE CLASSIFIED SECTION OF THE TELEPHONE BOOK

OR ON A BUILDING DIRECTORY, HIS LITERACY IS, BY ITSELF1

NO LONGER OF SPECIAL VALUE TO A GENERALLY LITERATE PUBLIC.
THE LAWYER MAY, INDEED, STILL HAVE SOMETHING UNIQUE TO

OFFER THE PUBLIC, BUT IT IS OFFERED IN A VAPTETY OF
REMARKABLY DIVERSE CIRCUMSTANCES..

DIVERSITY WITHIN THE LEGAL PROFESSION MAY HAVE
IMPLICATIONS AT MANY'DIFFERENT LEVELS. IT WILL NO DOUBT

AFFECT THE NATURE AND PERHAPS THE QUALITY OF THE

PROFESSIONAL SERVICES RENDERED BY LAWYERS IN DIFFERENT
PRACTICE SITUATIONS. IT WILL PROBABLY ALSO AFFECT THE

COMPENSATION TO BE EARNED FROM PROFESSIONAL SERVICES

PERFORMED IN DIFFERENT CONTEXTS. DIVERSITY TENDS TO

MULTIPLY THE NUMBER OF DIFFERENT KINDS OF SERVICES

OFFERED BY THE BAR, AS WELL AS THE CONDITIONS UNDER
WHICH THEY ARE OFFERED. IT MAY ALSO AFFECT THE EXTENT

-6-

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TO WHICH DIFFERENT LAWYERS ARE ABLE TO PERCEIVE THE
PROBLEMS OF MAKING LEGAL SERVICES AVAILABLE TO ALL
SEGMENTS OF SOCIETY OR TO APPRECIATE THE NATURE OF

THOSE PROBLEMS. IT WILL SURELY RESULT IN VARIATIONS
IN THE DEGREE TO WHICH DIFFERENT LAWYERS WILL BE AFFECTED

BY SUCH PROBLEMS AND BY VARIOUS POSSIBLE SOLUTIONS TO

THEM, AND FINALLY, IT MAY EXERT A CONTROLLING INFLUENCE
UPON THE WILLINGNESS OF VARIOUS SEGMENTS OF THE BAR TO
ACCEPT APPROPRIATE SOLUTIONS.
IT IS CLEAR THAT EFFORTS AT SELF-EXAMINATION,
SELF-CRITICISM, AND SELF-IMPROVEMENT BY THE LEGAL PROFES-
SION SHOULD TAKE INTO CONSIDERATION THE MANY DIFFERENCES
IN CHARACTERISTICS, ATTITUDES, INTERESTS, AND NEEDS OF
THE VARIOUS ELEMENTS OF THE BAR.
UNFORTUNATELY, THE ORGANIZED BAR WHEN CONSI-
DERING ITS DEFICIENCIES SEEMS UNDULY RELUCTANT TO
RECOGNIZE THE PROFESSION'S DIVERGENCE INTO DISSIMILAR
AND MORE OR LESS ISOLATED SEGMENTS. To PUT IT BLUNTLY,
THE BAR PERSISTS IN REGARDING ALL LAWYERS AS EQUAL, WHEN
IN FACT SOME ARE "MORE EQUAL THAN OTHERS." BLINDNESS
TO, THIS FUNDAMENTAL AND PERVASIVE FISSION INHIBITS

EFFECTIVE ACTION WITH RESPECT TO THE PROBLEMS OF PROPERLY
STRUCTURING THE ORGANIZED BAR.
HERETOFORE, LAWYERS HAVE VIEWED AND DEALT WITH

-7-

PROBLEMS OF THE PROFESSION AND OF THE LEGAL SYSTEM -

LARGELY FROM THE STANDPOINT OF TRADITION OFTEN MERELY
FOR THE SAKE OF TRADITION. BUT VALUABLE AS TRADITION
.MAY BE, TRADITION FOR TRADITION'S SAKE MAY NOT ALWAYS
PRODUCE ADEQUATE ANSWERS TO TODAY'S SERIOUS PROBLEMS.
WE MUST ATTEMPT TO VIEW THESE PROBLEMS FROM A DIFFERENT
AND POSSIBLY MORE RESPONSIVE PERSPECTIVE. WE COUNTY-
SEAT LAWYER, CORPORATION LAWYER, GOVERNMENT LAWYER, BIG
FIRM LAWYER AND SOLO PRACTITIONER MUST SEEK TO LOOK
AT THE ISSUES FROM ALL VIEWPOINTS AND DEAL WITH ALL
ASPECTS OF THE AVAILABILITY, THE MARKETING, AND THE
DISTRIBUTION OF QUALITY LEGAL SERVICES.
I SUGGEST THAT ACCESS TO LEGAL SERVICES MUST

NOW BE RECOGNIZED AS A MATTER OF LEGAL RIGHT, EQUALLY
AVAILABLE TO ALL CITIZENS. IF RELEVANT PROFESSIONAL
REPRESENTATION IS TO BE OFFERED TO ALL SEGMENTS OF THE
COMMUNITY AS A MATTER OF RIGHT, IT IS EVIDENT THAT THE
LEGAL PROFESSION MUST BE SUBSTANTIALLY RESTRUCTURED -

SOMETHING WHICH I BELIEVE TO BE LONG OVERDUE.
i AMONG THOSE INNOVATIONS OR IMPROVEMENTS WHICH

SHOULD BE RE-EXAMINED ARE THE FOLLOWING:
FIRSTu: CIVIL LEGAL SERVICES FOR PERSONS WITH-
OUT SUFFICIENT MEANS MUST BE FURTHER EXPANDED. CRIMINAL

DEFENSE SERVICES, BOTH PUBLIC AND PRIVATE, SHOULD BE

-8-

MADE ADEQUATE TO DEFEND INDIGENT PERSONS ACCUSED OF

CRIME. FEDERAL, STATE AND LOCAL GOVERNMENT SUPPORT OF

THE ACTIVITIES OF LEGAL AID AND DEFENDER FACILITIES

DESERVES TO BE A PERMANENT ELEMENT OF PUBLIC POLICY,

LAWYER REFERRAL SERVICES SHOULD BE IMPROVED AND EXPANDED

SO THAT ALL PERSONS SEEKING ACCESS TO A LAWYER CAN FIND

ONE, LEGAL SERVICES IN EACH COMMUNITY, INCLUDING LEGAL

AID, DEFENDER, LAWYER REFERRAL AND SIMILAR PLANS, SHOULD

BE COORDINATED BY THE LOCAL BAR ASSOCIATION AS A CONTINUING

RESPONSIBILITY.
SECOND: GROUP LEGAL SERVICE ARRANGEMENTS

SHOULD BE ENCOURAGED, SUBJECT TO SAFEGUARDS THAT WILL

ASSURE INDEPENDENCE OF PROFESSIONAL JUDGMENT AND FIDELITY
IN THE LAWYER-CLIENT RELATION.

THIRD: REMEDIAL JUSTICE IN CIVIL CONTROVERSIES

INVOLVING SMALL AMOUNTS MUST BE MADE AVAILABLE MORE SWIFTLY

AND ECONOMICALLY TO ALL CITIZENS. RAPID PROCEDURES AT

THE NEIGHBORHOOD LEVEL SHOULD BE DEVELOPED TO ADJUDICATE
DISPUTES OVER SIMPLE TRANSACTIONS.

FOURTH: FURTHER CONSIDERATION SHOULD BE GIVEN

TO THE INTRODUCTION OF THE OMBUDSMAN SYSTEM AS A SUPPLE-

MENTAL METHOD OF ASSURING FAIRNESS AND REGULARITY IN

GOVERNMENTAL PROCESSES, LEGAL SERVICES THROUGH PRIVATE

LAWYERS AND LEGAL AID ARE THEMSELVES AN IMPORTANT

S -9-

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METHOD OF CHECKING ON GOVERNMENT. THE OMBUDSMAN SYSTEMS,

HOWEVER, SEEM ESPECIALLY PROMISING TO DEAL WITH ABUSES
IN ADMINISTRATIVE AGENCIES WHERE THE COST OF INTERVENTION

BY OTHER MEANS MAY BE PROHIBITIVE,
FIFTH: CURRENT EFFORTS TO CREATE PRE-PAID

LEGAL COST INSURANCE ARRANGEMENTS MUST BE EXPANDED.
SIXTH: LAW OFFICES MUST USE ALL AVAILABLE
MEANS TO REDUCE OPERATING COSTS AND TO MAKE AVAILABLE

LEGAL SERVICES AT REASONABLE COST. IMPORTANT SAVINGS
ARE POSSIBLE THROUGH SOLO PRACTITIONERS JOINING TOGETHER
TO FORM LAW PARTNERSHIPS, THE REORGANIZATION OF SMALL
C> LAW OFFICES, USE OF MODERN EQUIPMENT, STANDARDIZATION OF
LEGAL INSTRUMENTS-AND OTHER IMPROVEMENTS IN OFFICE PRO-
CEDURES, AND THE INCREASED USE OF LAY ASSISTANTS OR OTHER
PARA-PPROFESSIONALS.
SEVENTH: THE ORGANIZED BAR SHOULD CONTINUE TO
EXPLORE THE FEASIBILITY OF CERTIFYING SPECIALISTS AS
A MEANS OF AIDING THE AVERAGE MAN TO SECURE COMPETENT
LEGAL SERVICES FOR PARTICULARIZED NEEDS.
UNLESS THE LEGAL PROFESSION BECOMES ESPECIALLY
CONCERNED WITH THESE AND SIMILAR PROBLEMS, LEGAL REPRE-
SENTATION, AS A PRACTICAL MATTER, WILL CONTINUE TO BE
UNAVAILABLE TO THOSE OF OUR CITIZENS WHO NOW HAVE AN

UNFILLED NEED FOR A LAWYER'S SERVICES.

-10-

o -

THE LAW SEEKS FAIR-DEALING, EQUITY AND REDRESS

OF GRIEVANCE THESE ARE THE BENEFITS OF LEGAL ORDER -

YET WE MUST ADMIT THAT .FOR MANY, OUR LEGAL INSTITUTIONS

HAVE PROVED INADEQUATE TO SECURE THE BENEFITS OF EQUAL
JUSTICE. AS LAWYERS, I SUGGEST THAT WE NOW ACKNOWLEDGE

THOSE DEFICIENCIES AND SET ABOUT CORRECTING THEM.
LAWYERS HAVE SPECIAL SKILLS AS ADVOCATES,

PLANNERS, NEGOTIATORS AND ORGANIZERS NEEDED IN ACHIEVING

SUCH OBJECTIVES. THEY MUST HELP PROVIDE LEADERSHIP IN
BOTH THE PUBLIC AND PRIVATE SECTORS. THE PROFESSION MUST

PROMPTLY PUT ITS OWN HOUSE IN ORDER SO THAT LAWYERS MIGHT

k PLAY THEIR TRADITIONAL AND HISTORIC ROLE IN THE MAKING-
OF THE GREAT DECISIONS OF OUR TIMES.
THE ORGANIZED BAR MUST MEET SOCIETY'S NEEDS AND
DEMANDS FOR LEGAL SERVICES. IN INCREASING VOLUME AND

VARIETY, THE LAW AND'THE LEGAL PROFESSION ARE CALLED ON

TO PERFORM NEW TASKS, FOR NEW CLIENTELE, IN RELATION TO
NEW PROBLEMS, AND IN NEW CONTEXT. THAT IS THE WAY IT

SHOULD BE THE LEGAL PROFESSION MUST ADAPT ITSELF
ACCORDINGLY1
THANK YOU.

-11-

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 42

VOLUME III

ADDRESS OF: CHESTERFIELD SMITH, LAKELAND, FLORIDA.
BEFORE: OKLAHOMA BAR ASSOCIATION TULSA, OKLAHOMAI
T ITLE.-OF its
ADDRESS: "SPECIALIZATION HOW TO SOLVE THE DILEMMA?"
ATE-OF -...
DELIVERY: MONDAY, NOVEMBER 9, 1970 6:30 P.M.

RECOGNITION AND REGULATION OF SPECIALIZATION IN
THE PRACTICE OF LAW IS NOT A NEW SUBJECT FOR THE LEGAL
PROFESSION, NOR FOR THE AMERICAN BAR ASSOCIATION,
IN 1954, THE HOUSE OF DELEGATES ADOPTED A RESO-
LUTION APPROVING IN PRINCIPLE THE NECESSITY TO REGULATE
VOLUNTARY SPECIALIZATION IN THE VARIOUS FIELDS OF THE
PRACTICE OF THE LAW FOR THE PROTECTION OF THE PUBLIC AND
THE BAR; AND APPROVING THE PRINCIPLE THAT IN ORDER TO
ENTITLE A LAWYER TO RECOGNITION AS A SPECIALIST IN A
PARTICULAR FIELD, HE SHOULD MEET CERTAIN STANDARDS OF EX-
PERIENCE AND EDUCATION. THE IMPLEMENTATION OF THAT RESO-
LUTION WAS DELEGATED TO THE BOARD OF GOVERNORS, SUBJECT
TO FINAL APPROVAL BY THE HOUSE OF DELEGATES. THEREAFTER,
SEVERAL EFFORTS WERE MADE IN THE HOUSE OF DELEGATES TO
IMPLEMENT THAT RESOLUTION WITHOUT SUCCESS.
IN AUGUST 1967, THE COMMITTEE ON AVAILABILITY OF
LEGAL SERVICES RECOMMENDED TO THE ROUSE OF DELEGATES THAT
THE BOARD OF GOVERNORS RENEW ITS EFFORTS TO IMPLEMENT THE

1954 RESOLUTION. PROVIDING FOR THE RECOGNITION AND REGULATION
OF VOLUNTARY SPECIALISTS IN THE VARIOUS FIELDS OF THE PRACTICE
OF THE LAW. AS A RESULT OF ACTION BY THE HOUSE OF DELEGATES
ON THAT RECOMMENDATION, THE BOARD OF GOVERNORS ESTABLISHED A
SPECIAL COMMITTEE ON SPECIALIZATION, DIRECTING IT TO ASSEMBLE
AND STUDY INFORMATION RELEVANT TO ALL ASPECTS OF VOLUNTARY
SPECIALIZATION, AND IF THE COMMITTEE SHOULD DETERMINE THAT THE
PROMULGATION OF A PLAN OF VOLUNTARY SPECIALIZATION WAS DESIRABLE,
TO PREPARE A PLAN IN VARIOUS FIELDS OF THE PRACTICE OF LAW
FOR THE CONSIDERATION OF THE BOARD OF GOVERNORS AND THE
HOUSE OF DELEGATES.
THAT COMMITTEE, UPON WHICH I SERVED FOR TWO YEARS
AS ITS CHAIRMAN, PRESENTED A RECOMMENDATION AND REPORT AT
THE 1969 MIDYEAR MEETING OF THE HOUSE OF DELEGATES HELD IN
CHICAGO WHICH WAS ADOPTED AND APPROVED.
WHILE RECOGNIZING THAT REGULATION OF SPECIALIZATION
IN THE LAW PRACTICE MAY INCREASE THE AVAILABILITY OF LEGAL
SERVICES TO THE GENERAL PUBLIC, THE REPORT OF THE COMMITTEE
ACKNOWLEDGED THAT SUCH REGULATION WILL ALSO CREATE CERTAIN
PROBLEMS FOR BOTH THE PUBLIC AND THE LEGAL PROFESSION. BASED
UPON THE RECOMMENDATION OF THE COMMITTEE, THE HOUSE OF DELEGATES
THERE CONCLUDED THAT THE DETERMINATION OF WHETHER TO PROMULGATE
A UNIFORM OR NATIONAL PLAN FOR THE REGULATION OF VOLUNTARY
LEGAL SPECIALIZATION SHOULD BE DELAYED UNTIL-EXPERIMENTAL

-2-

PROGRAMS FOR THE REGULATION OF SPECIALIZATION HAVE BEEN CON-
DUCTED AT THE STATE LEVEL, TODAY I WILL ADVANCE WHAT I BELIEVE
TO BE THE MOTIVATING INFLUENCES WHICH LED THE HOUSE OF DELE-
GATES TO THAT CONCLUSION.
EVEN THOUGH MANY LAWYERS STILL AT LEAST PAY LIP
SERVICE TO THE CONCEPT THAT A LAWYER CAN BE A JACK OF ALL
LEGAL TRADES, IN FACT MODERN LAWYERS CANNOT BE FULLY PROFICIENT
AND EFFICIENT IN EVERY FIELD OF THE LAW, AND MOST LAWYERS NOW
CLEARLY ACCEPT THAT FACT BY SELF-IMPOSED RESTRICTIONS ON
THEIR OWN PRACTICE. BUT THE ORGANIZED BAR DOES NOT RECOGNIZE
THAT FACT. TO PUT IT BLUNTLY, THE ORGANIZED BAR PERSISTS IN
REGARDING ALL LAWYERS AS EQUAL, WHEN IN FACT SOME ARE JUST
MORE EQUAL THAN OTHERS". BLINDNESS TO THIS FUNDAMENTAL AND
PERVASIVE FISSION INHIBITS EFFECTIVE ACTION WITH RESPECT TO
THE PROBLEMS OF LAWYERSI COMPETENCE,
SOME DEGREE OF SPECIALIZATION IS PROPERLY AN EXISTING
NECESSITY OF MODERN LAW PRACTICE. SPECIALIZATION PERMITS THE
LAWYER TO MAKE THE MOST EFFICIENT USE OF HIS TIME, SKILLS,
AND KNOWLEDGE, THE COMPLEXITY OF OUR SOCIETY AND THE INCREASING
PARTICIPATION THEREIN BY GOVERNMENT MAKE IT CLEAR THAT NO INDIVI-
DUAL LAWYER WILL EVER AGAIN BE PROFICIENT IN THE PERFORMANCE
OF ALL LEGAL TASKS, OUR EVER-EXPANDING ECONOMY WILL INEVITABLY
LEAD TO AN EVER-INCREASING PATTERN OF SPECIALIZATION BY
PRACTICING LAWYERS IN A LIMITED NUMBER OF THE VARIOUS FIELDS

-3-

OF THE LAW PRACTICE. AN INCREASE IN THE NUMBER OF LAWYERS WHO
SPECIALIZE IN AND OF ITSELF WOULD IMPROVE THE OVERALL QUALITY
OF THE TOTAL SERVICES RENDERED BY LAWYERS TO THEIR CLIENTS,
SIMPLY BECAUSE THOSE LAWYERS WHO SPECIALIZE WILL HAVE AN
OPPORTUNITY TO CONCENTRATE THEIR EXPERIENCE AND THEIR CONTINUING
LEGAL EDUCATION.
WHILE SPECIALIZATION IN THE PRACTICE OF LAW MAY
THUS IMPROVE THE QUALITY OF LEGAL SERVICES RENDERED TO HIS
CLIENTS BY THE PARTICULAR LAWYER THUS SPECIALIZING, SPECIALIZA-
TION IS NOT SYNONYMOUS WITH EXPERTNESS, THE CERTIFIED SPECIALIST
MUST STILL BE A LAWYER AND NOT A MERE LEGAL TECHNICIAN. A
COMPETENT LAWYER IS NOT REQUIRED TO KNOW. THE LAW WITHOUT
RESEARCH; HE MUST HAVE THE ABILITY TO FIND AND EVALUATE THE
LAW. EVEN A TRUE EXPERT, WITH SUBSTANTIAL REPETITIVE EXPERIENCE
IN A GIVEN FIELD, WILL RARELY IF EVER, GIVE A FIRM COMMITMENT
AS TO THE LAW ON A PARTICULAR POINT WITHOUT RESEARCH, UNLESS
HIS RECENT EXPERIENCES CONTAIN THE ANSWER. HIS ADVANTAGE
ARISES PRIMARILY FROM THE SHORTER RESEARCH TIME REQUIRED, AS
WELL AS FROM HIS EXPERIENCES. ONE BECOMES A REAL EXPERT ONLY
BY BOTH EXPERIENCE AND CONSTANT STUDY IN A PARTICULAR FIELD OR
FIELDS OF THE LAW PRACTICE EXTENDING OVER A PERIOD OF SEVERAL
YEARS, AND NOT BY CERTIFICATION AS A SPECIALIST.

IF A LAWYER IS TO SPECIALIZE IN ONE FIELD OF THE
LAW, IT IS HARDLY ARGUABLE THAT HE SHOULD MEET CERTAIN

MINIMUM STANDARDS OF EXPERIENCE AND EDUCATION IN THAT ONE

FIELD OF THE LAW. CERTIFICATION BY A COMPETENT AUTHORITY
MUST BE AN INTEGRAL- PART OF ANY COMPLETE PLAN OR PROGRAM
ULTIMATELY PROMULGATED TO REGULATE SPECIALIZATION IN THE

LAW PRACTICE. A BAR-REPRESENTED EXPERTNESS, OR EVEN A BAR-
COUNTENANCED SELF-CERTIFICATION OF EXPERTNESS, THAT DOES

NOT IN FACT EXIST, WOULD BE FAR WORSE IN ITS EFFECT UPON
THE PUBLIC IMAGE OF THE ORGANIZED BAR THAN ANY OF THE PRESENT
DETRIMENTS TO THAT IMAGE ATTRIBUTABLE TO THE NON-REGULATION

OF SPECIALIZATION. CERTAINLY ALL LAWYERS RECOGNIZE THAT THE
ATTEMPTED PERFORMANCE OF PROFESSIONAL SERVICES BY LAWYERS

WHO.ARE INDIVIDUALLY INCOMPETENT TO PERFORM SUCH SERVICES

BRINGS DISFAVOR ON THE LEGAL PROFESSION AS A WHOLE,

SELF-RECOGNITION OF SPECIAL PROFICIENCY WHICH IS
NOT VERIFIED AND FACTUAL IS NOT THE ULTIMATE ANSWER, NOR IS
IT EVEN NOW AN ACCEPTABLE SUBSTITUTE FOR CERTIFICATION. THE
MAJOR DIFFICULTY WITH SELF-CERTIFICATION, APART FROM THE CASE
OF THE LAWYER OF LITTLE INTEGRITY AND NO ACTUAL EXPERTISE
WHO WILL CLAIM EXPERTISE FOR SELF-AGGRANDIZEMENT, IS WITH

THE LAWYER WHO HONESTLY BELIEVES THAT HE IS QUALIFIED FOR
SPECIALIZED PRACTICE BUT WHO WOULD BE RATED AS A NOVICE BY

THOSE LAWYERS CLEARLY ENTITLED TO ACCREDITATION AS EXPERTS,

IF THE PUBLIC IMAGE OF THE ORGANIZED BAR IS TO BE UNBLEMISHED,

-5-

LAWYERS AS A.GROUP MUST EXERCISE A HIGH DEGREE OF RESPON-
SIBILITY TO THOSE FAR LESS INFORMED MEMBERS OF THE GENERAL

PUBLIC SEEKING A LAWYER AND WHO RELY OR MAY TEND TO RELY
UPON WHAT MAY BE A FALSE CLAIM OF SPECIAL PROFICIENCY.
LAWYERS WHO UNDERTAKE LEGAL SERVICES WHICH THEY
ARE INDIVIDUALLY INCOMPETENT TO PERFORM LEND CREDENCE TO THE
CLAIM OF LAY.GROUPS THAT ATTEMPTS BY THE BAR TO DETER THE
UNAUTHORIZED PRACTICE OF LAW BY SPECIALIZED LAYMEN IS
MOTIVATED SOLELY BY THE ECONOMIC SELF-INTEREST OF THE COM-
PLAINING LAWYERS. IF THE ORGANIZED BAR CAN PROVIDE AN
EFFECTIVE METHOD WHEREBY THE PUBLIC, OR GENERAL PRACTITIONERS
ON BEHALF OF THEIR CLIENTS, CAN IDENTIFY AND SELECT COMPE-
TENT LEGAL SPECIALISTS, THE CHANCE THAT PERSONS NEEDING
LEGAL SERVICES WILL TURN TO WELL-PUBLICIZED SPECIALIZED
LAYMEN, RATHER THAN TO LAWYERS, WILL BE MINIMIZED.

(INSERT 1)

-6--

MANY LAWYERS FIND IT HARD TO ACCEPT THE FACT THAT
THEIR ACCESSIBILITY TO POTENTIAL CLIENTS MAY BE A PROBLEM.
THEIR DOORS ARE OPEN TO ANYONE WHO WANTS TO WALK IN; THEIR
NAMES ARE IN THE TELEPHONE BOOK; THEY ARE ACCESSIBLE.
BUT IN THE FIELD.OF LEGAL SERVICES, AS IN FEW
OTHERS, ACCESSIBILITY TO A LAWYER MEANS MORE THAN JUST
BEING OPEN FOR BUSINESS. MANY MIDDLE-CLASS PEOPLE DO NOT
KNOW A LAWYER PERSONALLY, AND CHOOSING AN UNKNOWN LAWYER
"COLD", EITHER FROM THE YELLOW PAGES OR BY WALKING INTO A
RANDOM OFFICE, MAY BE AN IMPOSSIBLY FORBIDDING PROSPECT.
IN A VERY REAL SENSE, THE BIG CITY LAWYER IN HIS DOWNTOWN
OFFICE IS INACCESSIBLE TO MOST PEOPLE. AND EVEN THE SMALL
TOWN LAWYER MIGHT BE SURPRISED AT THE BARRIERS THAT EXIST
BETWEEN HIMSELF AND PROSPECTIVE MODERATE-INCOME CLIENTS,
WE MUST ACKNOWLEDGE THAT PEOPLE GENERALLY DO NOT REALLY
WANT A LAWYERS' SERVICES, EVEN WHEN THEY RECOGNIZE THAT
THEY HAVE A LEGAL PROBLEM.
ACCESSIBILITY TO A LAWYER BY A PERSON WHO HAS A
LEGAL PROBLEM MEANS BEING ABLE READILY TO FIND A LAWYER
ABLE TO PROVIDE THE PARTICULAR SERVICES THAT HIS PROBLEM
REQUIRES AND SOMEONE IN WHOM HE HAS CONFIDENCE. THE
SELECTION OF THAT LAWYER DOES PRESENT SERIOUS DIFFICULTIES
TO PEOPLE OF MODERATE MEANS, WHO.OFTEN DO NOT HAVE AND CANNOT
OBTAIN THE KNOWLEDGE ESSENTIAL TO INTELLIGENT SELECTION. IT

(INSERT I PAGE 1)
. '*t

SEEMS TO ME THAT LAWYERS HAVE FAILED TO MAINTAIN, AT LEAST
IN THE EYES OF PEOPLE WHO MIGHT BE PROPERLY STYLED AS THE
AVERAGE MAN WHO NEEDS A LAWYER BUT IS NOT UTILIZING ONE,
WHAT MIGHT BE CALLED AN "IMAGE OF COMPETENCE".
THE MEDICAL PROFESSION PROVIDES A USEFUL ANALOGY.
MOST OF US WHO ARE OLD ENOUGH TO REMEMBER THE OLD-FASHIONED
GENERAL MEDICAL PRACTITIONER.NO DOUBT STILL HARBOR SOME
FEELINGS OF NOSTALGIA ABOUT HIM. HE WAS THE WISE, SKILLED
HEALER. KIND, GENTLE, AND UNHURRIED, HE WAS FRIEND AND
COUNSELOR AS WELL AS DOCTOR. AND, OF COURSE, HE MADE HOUSE
CALLS,

BUT WHERE IS HE TODAY? AND, WHAT IS MORE IMPORTANT,
HOW MANY OF US WOULD REALLY HAVE HIM BACK IF WE HAD TO GIVE
UP TODAY'S HIGHLY TRAINED MEDICAL SPECIALISTS IN RETURN? WHEN
A PEDIATRICIAN REFUSES TO COME TO THE HOUSE AT MIDNIGHT TO
SEE A CHILD WITH A SLIGHT FEVER, WE MIGHT THINK WE WOULD
PREFER THE OLD GENERALIST BUT WOULD WE REALLY CHOOSE HIM
RATHER THAN A COMPETENT RADIOLOGIST TO EXAMINE AN X-RAY FOR
TUBERCULAR LESIONS? AND WHO WOULD TRADE OPEN HEART SURGERY
AND CORNEAL TRANSPLANTS FOR THE OLD-TIME DOCTOR'S BEDSIDE
MANNER?

THE POINT, OBVIOUSLY, IS THAT BY HONESTLY ADMITTING1
PRIMARILY THROUGH THE TRAINING AND CERTIFICATION OF SPECIALISTS,
THAT THE FIELD OF MEDICINE IS TOO VAST FOR COMPLETE MASTERY

(INSERT 1 PAGE 2)

BY ANY ONE DOCTOR, AND BY ELEVATING THE STANDARDS OF ALL
MEDICAL TRAINING AND PRACTICE, THE MEDICAL PROFESSION HAS
DEVELOPED AND OFFERS REAL AND UNMISTAKABLE COMPETENCE TO THE
PUBLIC. DOCTORS HAVE THUS CREATED AN "IMAGE OF COMPETENCE"
BASED ON ACTUAL COMPETENCE. THAT EFFECTIVELY DISPOSES OF MOST

OF THEIR COMPETITION PROBLEMS,

THE MODERN DOCTOR, BE HE

GENERALIST OR SPECIALIST, MAY BE COLD OR ALOOF.

SOMEWHAT INACCESSIBLE,

HE MAY BE

HE MAY APPEAR EXPENSIVE, THOUGH HE

IS NOT NECESSARILY OVERPRICED IN RELATION TO THE VALUE OF

THE SERVICE HE PERFORMS,

BUT HE HAS NO REAL COMPETITION;

NOT BECAUSE OF PROSCRIPTIVE LAWS ALTHOUGH, OF COURSE,
THEY EXIST BUT BECAUSE MOST PEOPLE TODAY SIMPLY WOULD NOT
THINK OF GOING ELSEWHERE TO OBTAIN THE SOPHISTICATED SERVICES

HE OFFERS.

AS ONE RESULT, THE MEDICAL PROFESSION'.S UNAUTHO-

RIZED PRACTICE PROGRAM HAS QUITE A DIFFERENT CHARACTER FROM
THAT OF THE BAR.

BUT WHAT ABOUT THE LEGAL PROFESSION?

WHEN THE

PERSON OF MODERATE MEANS THINKS ABOUT PLANNING FOR HIS
FAMILY IN THE EVENT OF HIS DEATH, WILL HE NOT BE LIKELY
TO TURN TO HIS LIFE INSURANCE AGENT OR HIS BANK RATHER THAN
TO A LAWYER? WHEN HE BUYS A HOUSE, WILL THE THOUGHT OF
CONSULTING A LAWYER EVEN ENTER HIS MIND, OR WILL HE RELY
UNQUESTIONINGLY UPON HIS REALTOR AND THE TITLE INSURANCE
COMPANY?

(INSERT 1 PAGE 3)

NEVERTHELESS, SPECIALIZATION IS RELATED TO PROFES-
SIONAL COMPETENCE. LET US LOOK AT THE FIELD OF TAXATION.
WHEN AN INDIVIDUAL CITIZEN THINKS ABOUT COMPETENT ASSISTANCE
WITH TAX PROBLEMS# DOES HE THINK ABOUT LAWYERS? ALMOST SURELY
NOT; HE IS MORE APT TO THINK ABOUT ONE OF THE COMMERCIAL
INCOME TAX SERVICES OR ABOUT A CERTIFIED PUBLIC ACCOUNTANT.
THE BAR HAS LONG HAD TAX SPECIALISTS, OF COURSE, BUT THEIR
SERVICES HAVE BEEN PRIMARILY FOR BUSINESS AND PROPERTY CLIENTS;
THEY HAVE NEVER BEEN AVAILABLE TO ALL OF OUR PEOPLE TO ANY
SIGNIFICANT EXTENT. IN FACT, PROFESSIONAL RESTRICTIONS HAVE
PREVENTED LAWYERS FROM OFFERING SPECIAL TAX SKILLS TO THE
GENERAL PUBLIC IN ANY EFFECTIVE MANNER.

AS A RESULT, ACCOUNTANTS HAVE MOVED SOLIDLY INTO
TAX PRACTICE, AND THE BAR HAS RESORTED TO A RUNNING BATTLE
WITH ACCOUNTANTS TO TRY TO MAINTAIN A LINE OF SOME KIND
BETWEEN TAX ACCOUNTING AND TAX LAW PRACTICE. WHATEVER ELSE
THIS APPROACH TO THE REGULATION OF PROFESSIONAL CONDUCT MAY
HAVE ACCOMPLISHED, ONE EFFECT HAS CLEARLY BEEN THE PRACTICAL
UNAVAILABILITY TO ALL OF OUR PEOPLE OF THE KIND OF HIGHLY
COMPETENT TAX ADVICE AND SERVICE AVAILABLE TO BUSINESS AND
PROPERTY CLIENTS.
TO BE SURE, LAWYERS WHO SERVE PROPERTY AND BUSI-
NESS CLIENTS PROBABLY HAVE AN "IMAGE OF COMPETENCE" IN THE
EYES OF THEIR CLIENTS, AND PEOPLE PROBABLY STILL THINK

(INSERT 1 PAGE 4)

FIRST OF LAWYERS WHEN THE TALK IS OF LAWSUITS; LAWYERS GENERALLY
MAY THUS BE SAID TO HAVE MAINTAINED SOMETHING OF AN "IMAGE OF
COMPETENCE" WITH REGARD TO LITIGATION, BUT IN MANY OF THE
OTHER AREAS IN WHICH LAWYERS' SERVICES MIGHT BE SO BENEFICIAL.
MANY PEOPLE PROBABLY DO NOT REGARD LAWYERS AS FEASIBLE OR
EVEN APPROPRIATE SOURCES OF HELP,
THE ANALOGY BETWEEN THE LEGAL AND MEDICAL PROFES-
SIONS IS OF COURSE OVERDRAWN. THE MEDICAL PROFESSION'S
SPECIALIZATION SYSTEM IS CERTAINLY NOT WITHOUT ITS PROBLEMS.
THE PROBLEM OF RETAINING FOR THE PUBLIC THE BENEFITS HERETO-
FORE PROVIDED THROUGH THE TRADITIONAL MEDICAL GENERAL PRACTITIONER -
PARTICULARLY DIAGNOSTIC SERVICES, EMERGENCY SERVICES, AND
CONTINUING COMPREHENSIVE CARE IS ESPECIALLY DIFFICULT. BUT
THE POINT MADE EARLIER STILL STANDS. AN "IMAGE OF COMPETENCE",
BASED UPON UNMISTAKABLE AND PUBLICLY KNOWN ACTUAL COMPETENCE,
COULD BE THE LEGAL PROFESSION'S MOST EFFECTIVE COMPETITIVE
WEAPON,

(INSERT 1 PAGE 5)

IT IS OF COURSE IMPORTANT THAT THE LAWYERS WHO

PRESENTLY SPECIALIZE DO NOT DEVELOP INTO NARROW AND AUTONOMOUS
SELF-POLICING UNITS. THE EXPERIENCE OF THE MEDICAL PRO-
FESSION IN THAT REGARD DEMONSTRATES THAT THIS POSSIBILITY
IS A REAL AND PRESENT DANGER. A SIMILAR FRACTIONALIZATION
OF THE LEGAL PROFESSION COULD ULTIMATELY BE DETRIMENTAL TO
BOTH THE PUBLIC AND THE SPECIALIZED LAWYER INTEREST GROUPS,

AND EXTREME VIGILANCE ON THE PART OF THE ORGANIZED BAR IS

WARRANTED, WHETHER SPECIALIZATION BE REGULATED OR UNREGULATED,
IN ORDER THAT GENERAL SUPERVISION OF ALL SPECIALIZED LAWYER

INTEREST GROUPS IS EXERCISED BY THE ORGANIZED BAR AS A WHOLE.
I AM CONVINCED THAT ANY SPECIFIC PROGRAM OF REGU-
LATION WILL BE OPPOSED BY SOME LAWYERS, SOME LAWYERS WILL

OBJECT TO THE TIME AND EFFORT THEY FEEL WILL BE INVOLVED
IN OBTAINING CERTIFICATION, OTHER LAWYERS FEAR THAT THEY

WILL NOT BE ABLE TO QUALIFY IN A PARTICULAR FIELD OF THE LAW
IN WHICH THEY ARE INTERESTED, ESPECIALLY IF THE CERTIFICATION
PROCEDURE IMPOSES HIGH STANDARDS, MANY GENERAL PRACTITIONERS

WHO DO NOT SPECIALIZE FEAR A LOSS OF PRACTICE TO THOSE WHO
WILL QUALIFY AS LEGAL SPECIALISTS AND WHO ARE SO CERTIFIED,

A FEW LAWYERS PRESENTLY SPECIALIZING ARE APPREHENSIVE THAT
THEY MAY BE REQUIRED BY REGULATION TO.GIVE UP WORK WHICH

THEY ARE NOW DOING IN LEGAL AREAS OUTSIDE OF THEIR OWN

SPECIALTY. MANY LAWYERS, WHETHER SPECIALISTS OR GENERALISTS,

.- -7-

ALSO FEAR THAT A PROGRAM OF CERTIFICATION WOULD TEND TO
CREATE NARROW SPECIALTIES AND THUS MAKE IT MORE DIFFICULT

TO ASSURE ADEQUATE SERVICE TO CLIENTS IN AREAS WHICH
OVERLAP SEVERAL SPECIALTIES,

THOSE OBSTACLES, FEARS, AND OBJECTIONS MUST BE
CAREFULLY CONSIDERED. SUCH QUESTIONS AS WHAT IS TO BE THE
CERTIFYING AUTHORITY, WHAT STANDARDS ARE TO BE ESTABLISHED,
WHAT SHOULD BE DONE ABOUT EXISTING SPECIALISTS FOR WHOM IT

MIGHT BE AN UNREASONABLE BURDEN TO IMPOSE THE SAME STRICT
CERTIFICATION REQUIREMENTS, AND WHAT MEANS ARE TO BE UTILIZED
TO INFORM THE GENERAL PUBLIC OF THE QUALIFICATIONS OF A
CERTIFIED LEGAL SPECIALIST, ARE AREAS OF GREAT CONCERN TO
ANYONE-.

(INSERT 2)

-8-

ANY PLAN OF REGULATION MUST BE CONSISTENT WITH
RECOGNITION OF THE IMPORTANCE OF A BROAD LEGAL EDUCATION
AND MUST MINIMIZE ANY ADVERSE EFFECT ON THE GENERAL PRAC-
TITIONER. THE IMPORTANCE OF THE LAWYER IN GENERAL PRACTICE,
HISTORICALLY AND CURRENTLY, TO THE PUBLIC AND TO THE LEGAL
PROFESSION, CAN HARDLY BE OVERSTATED. I AM UNALTERABLY
CONVINCED THAT ANY PLAN FOR THE REGULATION OF SPECIALIZATION
MUST PRESERVE THE USEFULNESS AND EFFECTIVENESS OF GENERAL
PRACTICING LAWYERS. THE CONTRIBUTION OF THE GENERAL PRACTI-
TIONER IN THE ONGOING ACTIVITIES OF THE ORGANIZED BAR IS AND
HAS BEEN MONUMENTAL.
GENERAL PRACTICE IS ONE OF THE MOST DIFFICULT
PRACTICE AREAS IN THE LAW, IT REQUIRES BEING CURRENTLY
FAMILIAR WITH SEVERAL SUBJECT AREAS OF LAW THE AREAS
VARYING IN DIFFERENT GEOGRAPHIC AREAS. MANY CONTINUING LEGAL
EDUCATION PROGRAMS ARE ESPECIALLY DESIGNED TO HELP THE
GENERAL PRACTICING LAWYER TO KEEP UP TO DATE IN THOSE LAW
AREAS. IT IS READILY APPARENT THAT ANY ACCEPTABLE SYSTEM
FOR THE REGULATION OF SPECIALISTS MUST NOT TEND TO ELIMINATE
COUNTY-SEAT LAWYERS, NOR BENEFIT, BY REASON OF PROVISIONS
INHERENT IN THE PARTICULAR SYSTEM, THE MIDDLE AND LARGE
SIZED LAW FIRMS TO THE DETRIMENT OF SMALL FIRMS AND INDIVI-
DUALLY PRACTICING LAWYERS. CARE SHOULD OF COURSE ALSO BE
TAKEN TO INSURE THAT THE PROVISIONS OF THE PLAN DO NOT RETARD

(INSERT 2 PAGE 1)

THE EVER-ACCELERATING TREND OF LAWYERS TO BAND TOGETHER IN
PARTNERSHIPS FOR THE PRACTICE OF LAW.

(INSERT 2 PAGE 2)

IN CONSIDERING THE MERITS OF OFFICIAL RECOGNITION
AND REGULATION OF SPECIALIZATION IN THE LAW PRACTICE, THE
BENEFITS AND DETRIMENTS WHICH MIGHT BE OBTAINED THEREFROM
MUST BE ANALYZED IN THE CONTEXT OF SPECIFIC PROGRAMS. THE
LIMITATIONS WHICH MIGHT BE PLACED UPON PRACTICE BY A CERTI-
FIED SPECIALIST SHOULD BE CONSIDERED. UNDER EXISTING LAW,
THE STANDARD OF CARE REQUIRED FOR LAWYERS OF CERTIFIED STATUS
WOULD OF COURSE BE INCREASED WITH ADDITIONAL EXPOSURE TO
LIABILITY FOR ERROR AND OMISSIONS.

THE NATURE OF LEGAL PRACTICE DIFFERS FROM STATE
TO STATE, AND THERE ARE SIGNIFICANT DIFFERENCES AMONG THE
STATES IN BOTH SUBSTANTIVE AND PROCEDURAL LAW. THE PRACTICE
OF LAW IS NOW REGULATED ALMOST EXCLUSIVELY WITHIN THE VARIOUS
STATES. BOTH INITIAL ADMISSION AND PROFESSIONAL DISCIPLINE
ARE HANDLED AT THE STATE LEVEL, REGULATION OF SPECIALIZATION
IS INTRINSICALLY RELATED TO THOSE OTHER ASPECTS OF THE
REGULATION OF THE PRACTICE OF LAW. THE FACT THAT THE POWER
TO REGULATE THE LEGAL PROFESSION NOW EXISTS ONLY AT THE STATE
LEVEL COMPELLED ME TO BELIEVE THAT STATE LEVEL REGULATION
OF SPECIALIZATION WAS THE ONLY WAY IN WHICH THIS REFORM
COULD EVER BE ACHIEVED, STATE PARTICIPATION CERTAINLY IS
AN OBVIOUSLY INDISPENSABLE INGREDIENT OF ANY ACCEPTABLE
PLAN. I SUBMIT THAT IF REGULATION IS PLACED AT THE STATE
LEVEL, THE REGULATORY BODY WILL BE MUCH MORE FLEXIBLE AND

-9-

RESPONSIVE IN REACTING TO EMERGING PROBLEMS THAN IF THE
REGULATORY BODY IS PLACED AT THE NATIONAL LEVEL.

(INSERT 3)

,. -10-

DURING ITS DELIBERATIONS, THE AMERICAN BAR ASSOCIA-
TION COMMITTEE CONSIDERED MODEL AND STATE PLANS DRAFTED BY
BOTH COMMITTEE MEMBERS AND BY OTHER INTERESTED LAWYERS. THE
COMMITTEE REJECTED SEVERAL NATIONAL PLANS, AND-FINALLY CON-
CLUDED THAT IT WAS NOT EVEN WILLING TO RECOMMEND THAT THE
AMERICAN BAR ASSOCIATION PROMULGATE A MODEL CODE FOR USE BY
THOSE STATES WISHING TO EXPERIMENT UNTIL AFTER PILOT PROGRAMS
OF SPECIALIZATION IN THE PRACTICE OF LAW HAD 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
REFERRED CLIENT UPON COMPLETION OF THE REFERRED MATTER. HE
SHOULD NOT AGAIN REPRESENT THE CLIENT WITHOUT THE CONSENT
OF THE CLIENT'S LAWYERS,
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.

(INSERT.3 PAGE 1)

4. ANY LAWYER, ALONE OR IN ASSOCIATION WITH ANY
OTHER LAWYER, SHOULD HAVE THE RIGHT TO PRACTICE IN ANY FIELD
OF THE LAWS 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 PROFICI-
ENCY AS A SPECIALIST SHOULD BE PROVIDED,
9. ADEQUATE FINANCING TO COVER THE COST OF ADMINISTRA-
TION SHOULD BE DERIVED FROM THOSE WHO ARE CERTIFIED AS SPECIALISTS,
I ALSO BELIEVE THAT THE DETERMINATION OF CONTINUED
PROFICIENCY IS CLOSELY RELATED TO THE QUESTION OF INITIAL
CERTIFICATION. WHAT IS THE LAW TODAY IN A SPECIALIZED AREA
MAY NOT BE THE LAW TOMORROW, THE LAWYER WHO DOES NOT KEEP
UP CANNOT BE CALLED PROFICIENT, IF REPRESENTATIONS OF

(INSERT 3 PAGE 2)

PROFICIENCY ARE TO BE MADE WITH STATE BAR SANCTION, THE
CERTIFICATION SYSTEM MUST ALSO PROVIDE FOR AN ASSURANCE OF
CONTINUED EXPERTNESS,

(INSERT 3 PAGE 3)

No MATTER HOW MUCH CARE IS NOW DEVOTED TO A
SPECIFIC PLAN OF REGULATION OF SPECIALIZED LAW PRACTICE,
SUCH PROGRAM CANNOT POSSIBLY PROVIDE AGAINST MANY PRACTICAL
PROBLEMS WHICH WILL DEVELOP, PITFALLS WILL INEVITABLY
OCCUR, MEANS OF ADJUSTING THOSE DEFICIENCIES WILL HAVE TO
BE WORKED OUT, AND THE PROGRAM ULTIMATELY ADOPTED WILL
UNQUESTIONABLY HAVE TO BE MODIFIED BY EXPERIENCE, AS TIME
GOES ON, A BODY OF EXPERIENCE WILL DEVELOP WHICH WILL INEVITABLY
LEAD TO BETTER CRITERIA FOR PROVIDING QUALITY LEGAL SERVICES
IN SPECIALIZED AREAS.
IT IS ONLY WHEN THOSE DEVELOPMENTS HAVE OCCURRED
THAT CONSIDERATION SHOULD BE GIVEN TO THE SUBSIDIARY ISSUES
WHICH PRESENTLY OCCASION SO MUCH DIALOGUE AMONG LAWYERS
DEBATING THE "HOW" OF LEGAL SPECIALIZATION. THE ORGANIZED
BAR NEEDS EXPERIENCE AT ALL LEVELS BEFORE FINAL POSITIONS
ARE TAKEN.

(INSERT 4)

,Al-

THE MOST FREQUENTLY VOICED OBJECTION TO REGULATION
OF SPECIALIZATION IS ITS SUPPOSED HARMFUL EFFECT UPON THE
SOLE PRACTITIONER AND THE SMALL PARTNERSHIP IN RURAL AREAS.
EVERYONE AGREES THAT THE BIG FIRM LAWYER ALREADY HAS THE
BENEFITS OF SPECIALIZED PRACTICE. IT IS ARGUED THAT LARGE
LAW FIRMS IN GENERAL ARE NOT ADVERSELY AFFECTED BY THE
FAILURE OF THE BAR TO 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, AND
THAT REGULATION WOULD ONLY ENCOURAGE CLIENTS TO LEAVE GENERAL
PRACTITIONERS TO GO TO THOSE LARGE CONGLOMERATES OF LEGAL
SPECIALISTS. I DO NOT ACCEPT THAT ARGUMENT AS I BELIEVE
THAT EXPERIMENTATION MAY DEMONSTRATE THAT REGULATION OF
LEGAL SPECIALIZATION TENDS TO EQUATE THE SOLE PRACTITIONER
AND SMALL LAW FIRM WITH THE LARGE LAW FIRM IN MAKING SPECI-
ALIZED SERVICES AVAILABLE TO THEIR RESPECTIVE 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
OF THE LAW. MANY LAWYERS ARGUE THAT THE OFFICIAL RECOGNITION

OF SPECIALISTS WOULD-ENABLE GENERAL PRACTITIONERS MORE EASILY

(INSERT 4 PAGE 1)

TO OBTAIN QUALIFIED SPECIALISTS TO ASSIST THEM IN SITUATIONS
WHERE THEY MAY OCCASIONALLY NEED SUCH SPECIALIZED LEGAL
SERVICES. CERTAINLY, I BELIEVE THAT 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. IF EXPERIMENTATION DOES SHOW
THAT IT ENABLES THE SMALL PRACTITIONER MORE EFFECTIVELY TO
COMPETE WITH THE LARGE LAW FIRMS, REGULATED SPECIALIZATION
MAY BE THE MEANS WHEREBY THE ULTIMATE SURVIVAL OF THE INDEPEN-
DENT SOLE PRACTITIONER IS INSURED.
EVEN IN THOSE STATES WHICH CONCLUDE THAT IT IS PRE-
SENTLY UNDESIRABLE TO EXPERIMENT ON A BROAD BASIS WITH THE
CERTIFICATION OF LEGAL SPECIALISTS, I SUGGEST THAT SPECIAL
ATTENTION SHOULD NEVERTHELESS BE GIVEN TO TWO AREAS:
FIRST WAYS AND MEANS WHEREBY THE AVAILABILITY OF
LAWYERS POSSESSING UNUSUAL SKILLS MAY BE MADE KNOWN. AMONG
THOSE ARE LAWYERS WHO HAVE SPECIALIZED TECHNICAL NON-LEGAL
TRAINING; WHO HAVE KNOWLEDGE OF A FOREIGN LANGUAGE OR LAW;
WHO HAVE REFERENCE MATERIAL NOT READILY AVAILABLE TO ALL
LAWYERS; OR WHO HAVE KNOWLEDGE OF FIELDS WHICH AFFECT ONLY
A NARROW SEGMENT OF THE PUBLIC. FOR EXAMPLE, A SURVEY
UNDERTAKEN BY A BAR ASSOCIATION FOR THAT PURPOSE MIGHT BE
MADE KNOWN TO THE MEMBERS OF THE BAR GENERALLY EVEN THOUGH
NOT OTHERWISE DISSEMINATED TO THE PUBLIC,

(INSERT. PAGE 2)

SECOND VOLUNTARY LIMITATION OF PRACTICE TO A
SPECIFIED FIELD OF THE LAW, OR TO ONE OR MORE FUNCTIONALLY

RELATED FIELDS OF THE LAW, BY EXPERIENCED PRACTITIONERS OF

DEMONSTRATED CAPACITY. LIMITATION OF PRACTICE SEEMS TO ME
ON BALANCE TO BE IN THE PUBLIC INTEREST, AND I BELIEVE IT

SHOULD BE PERMITTED. THE INCREASED REPETITIVE EXPERIENCE
WHICH IS A NECESSARY COROLLARY TO A RESTRICTED PRACTICE
MAY ENABLE THOSE LAWYERS WHO VOLUNTARILY SO CHOOSE TO PERFORM
BETTER LEGAL SERVICES IN THEIR SPECIALIZED FIELD OR FIELDS
OF THE LAW AT A DECREASED CONSUMPTION OF THEIR TIME, WITH
RESULTANT POTENTIAL SAVINGS TO THEIR CLIENTS,

(INSERT 4 PAGE 3)
4--

I AM CONVINCED THAT SOME OF THE STANDARD ARGUMENTS
PRESENTED AGAINST SPECIFIC PROGRAMS OF REGULATION OF SPECIALI-
ZATION IN THE LAW PRACTICE ARE REAL, BUT ALSO BELIEVE THAT
MANY OF THEM ARE ONLY IMAGINED. I HAVE ALSO CONCLUDED THAT
THE NEED FOR REGULATED SPECIALIZATION IN MANY STATES IS
MINIMAL, BUT IN OTHER STATES, I BELIEVE THAT THE PUBLIC
INTEREST INDICATES THAT SOME ACTION ON THE MATTER BE TAKEN
BY.THE ORGANIZED BAR. IT APPEARS TO ME THAT IT IS A MATTER
FOR EACH STATE TO DECIDE FOR ITSELF IN VIEW OF ITS PARTICULAR
CIRCUMSTANCES AND ECONOMY,
IN ENCOURAGING THOSE STATES WHICH WISH TO DO SO TO
SEEK SOLUTIONS TO THE NUMEROUS PRACTICAL AND THEORETICAL PRO-
BLEMS INVOLVED IN LEGAL SPECIALIZATION, THE AMERICAN BAR
ASSOCIATION WAS NOT DECIDING WHETHER THE LEGAL PROFESSION
WILL HAVE SPECIALIZATION. SPECIALIZATION IS ALREADY HERE,
AND IT WILL INEVITABLY INCREASE. THE ISSUE WAS ONLY WHETHER
A PLAN FOR SPECIALIZATION IN THE PRACTICE OF LAW WOULD BE
RECOMMENDED ON A NATIONAL BASIS AT THAT TIME, IT WAS THE
CONCLUSION OF THE HOUSE OF DELEGATES THAT NOW IS NOT THE
TIME TO TAKE SUCH-ACTION.
THERE ARE THOSE WHO ARE DISAPPOINTED THAT THE
AMERICAN BAR ASSOCIATION DID NOT TAKE A BOLD LEAP FORWARD,
OTHERS ARE EQUALLY VEXED BECAUSE IT DID NOT SUMMARILY REJECT
FURTHER CONSIDERATION OF ANY CHANGE IN THIS AREA OF THE LEGAL

PROFESSION. IN ANSWER TO BOTH CONTENTIONS, I SUGGEST THAT
THE COURSE OF ACTION ADOPTED TAKES FULL ADVANTAGE OF THE
BENEFICIAL WAY THE ORGANIZED BAR FUNCTIONS IN THIS COUNTRY.
THE AMERICAN BAR ASSOCIATION, AS AN INSTRUMENT OF NATIONWIDE
LEADERSHIP FOR LAWYERS, SHOULD AND MUST BE CAUTIOUS IN ALTERING
OR CHANGING THE STRUCTURE OF THE LEGAL PROFESSION. STATE BARS
HAVE MANY TIMES IN THE PAST SERVED AS LABORATORIES OF CHANGE.
I PERSONALLY BELIEVE THAT STATE BARS HAVE LED THE WAY TO MANY
OF THE MORE POSITIVE ADVANCES ACHIEVED BY THE ORGANIZED BAR IN
RECENT YEARS. CERTAINLY, ONE OF THE MORE FAVORABLE ATTRIBUTES
OF OUR SYSTEM OF BAR ORGANIZATION IS THAT A SINGLE COURAGEOUS
STATE BAR MAY, IF THE MEMBERS THEREOF CHOOSE, SERVE AS A LABORA-
TORY AND TRY NOVEL, POLITICAL, SOCIAL AND ECONOMIC EXPERIMENTS
WITHOUT RISK TO OTHER STATE BARS, OR TO THE AMERICAN BAR
ASSOCIATION AS AN ENTITY.
SUCH EXPERIMENTAL OR PILOT PROGRAMS WILL BE USEFUL
WHETHER THE PROGRAMS ARE SUCCESSFUL OR UNSUCCESSFUL, THE
EXPERIENCE DEVELOPED BY DIVERSE APPROACHES MAY PERMIT THE
RECOMMENDATION OF CRITERIA FOR A FLEXIBLE BUT MEANINGFUL
SYSTEM FOR THE RECOGNITION OF SPECIALTIES; OR MAY LEAD TO
THE FINAL CONCLUSION THAT NO EFFECTIVE SYSTEM CAN BE DEVISED
THAT WILL HAVE MORE ADVANTAGES THAN DISADVANTAGES.
FOR THE.FIRST TIME IN ITS HISTORY, THE AMERICAN
BAR ASSOCIATION NOW HAS A COMMITTEE WITH GENERAL JURISDICTION

-13-

OF ALL MATTERS PERTAINING TO LEGAL SPECIALIZATION. THAT
COMMITTEE WAS DIRECTED TO COLLECT DATA ,MAKE SURVEYS OF
BOTH THE PUBLIC AND THE LEGAL PROFESSION, CONDUCT STUDIES
AND GENERALLY TO ASSIST STATE BAR ASSOCIATIONS IN DEVELOPING
PROGRAMS RELATING TO SPECIALIZATION IN THE LAW PRACTICE.
IN PARTICULAR, THE COMMITTEE WASGIVEN THE RESPONSIBILITY
OF RECOMMENDING MODEL PLANS OF SPECIALIZATION FOR ADOPTION
BY.THE STATES, AND A NATIONAL PLAN FOR SPECIALIZATION IF
THE PRACTICABILITY AND DESIRABILITY OF SUCH PLANS BECOME
APPARENT AT SOME FUTURE TIME. So, FOR THE FIRST TIME,
NATIONWIDE LEADERSHIP IN THE TROUBLESOME FIELD OF LEGAL
SPECIALIZATION IS AVAILABLE.

WHILE ADMITTEDLY THAT ACTION IS ONLY A FIRST
STEP, ITS IMPORTANCE IS TWO-FOLD, FIRST, IT DOES COMMIT
THE AMERICAN BAR ASSOCIATION TO SEEK A SOLUTION TO ONE OF
THE MOST VEXING AND TROUBLESOME AREAS IN THE STRUCTURING OF
THE ORGANIZED BAR, THE REGULATION OF LEGAL SPECIALIZATION.
SECOND, IT DETERMINES THAT THE APPROACH TAKEN IN SOLVING THE
PROBLEM OF LEGAL SPECIALIZATION BY THE AMERICAN BAR ASSocIA-
TION WILL BE EVOLUTIONARY AND NOT REVOLUTIONARY.
THE PLAN IS WORKING, SEVERAL STATES ARE ALREADY
ACTIVELY CONSIDERING WHETHER OR NOT THEY SHOULD PROMULGATE
THEIR OWN PLANS FOR THE CERTIFICATION AND REGULATION OF LEGAL
SPECIALISTS. AMONG THOSE STATES ARE CALIFORNIA, COLORADO,

-14-

FLORIDA, MARYLAND, MICHIGAN, MINNESOTA, NEW JERSEY, VIRGINIA,
TEXAS AND WISCONSIN. IN FACT, THIRTY STATE BAR ASSOCIATIONS
HAVE COMMITTEES STUDYING THE MATTER OF LEGAL SPECIALIZATION.
THE SPECIALIZATION PLAN OF THE STATE BAR OF CALIFORNIA
HAS BEEN SELECTED BY THE ABA AS A PROPER VEHICLE FOR EXPERI-
MENTATION,
THE CALIFORNIA PROGRAM ESTABLISHES A BOARD OF LEGAL
SPECIALIZATION. INITIALLY, THE FIVE-YEAR EXPERIMENTAL PROGRAM
WILL BE CONFINED TO THREE AREAS OF LAW; THAT IS: (1) CRIMINAL
LAW; (2) WORKMEN'S COMPENSATION LAW; AND (3) TAX LAW. ADVISORY
COMMISSIONS ARE TO BE SET UP IN EACH FIELD.
THAT PROGRAM WAS PUT INTO ACTUAL OPERATION ON NOVEMBER
1, 1970 WITH THE APPROVAL OF BOTH THE BOARD OF GOVERNORS OF THE
STATE BAR OF CALIFORNIA AND THE SUPREME COURT OF CALIFORNIA. THE
IMPLEMENTATION OF THIS PLAN NOW INSURES THAT BOTH THE AMERICAN
BAR ASSOCIATION AND INTERESTED STATE BAR ASSOCIATIONS WILL HAVE
AVAILABLE FOR THE FIRST TIME FACTS WHICH POINT OUT THE DANGERS
AND PITFALLS WHICH INEVITABLY WILL BE ENCOUNTERED, AND WHICH
ANSWER OR REFUTE THE EXISTING ARGUMENTS, BOTH FOR AND AGAINST,
THE REGULATION OF SPECIALIZATION IN THE LAW PRACTICE1
THE MICHIGAN COMMITTEE ON SPECIALIZATION HAS ALSO
SUBMITTED A FINAL REPORT RECOMMENDING A PILOT PROGRAM TO THE
BOARD OF GOVERNORS OF THE STATE BAR OF MICHIGAN. THE BOARD
OF GOVERNORS OF THE STATE BAR OF MICHIGAN CURRENTLY IS

-s. -15-

SOLICITING THE VIEWS OF MICHIGAN LAWYERS BEFORE TAKING FINAL
ACTION ON THE REPORT. THAT PROGRAM, IF ADOPTED, WILL ULTIMATELY
POTENTIALLY COVER ALL AREAS OF LAW, BUT IT WILL BE CONFINED
INITIALLY TO TWO SPECIALTIES; THAT IS, PROBATE AND LABOR LAW.
THE COMMITTEE OF THE STATE BAR OF MICHIGAN WHICH DEVISED THE
PLAN ESTIMATES THAT IT IS MOST LIKELY THAT AT LEAST ONE YEAR
WILL ELAPSE BEFORE THE PLAN CAN BE FULLY IMPLEMENTED.
THE COMMITTEE ON SPECIALIZATION OF THE STATE BAR
OF TEXAS HAS JUST RECENTLY-RECOMMENDED THAT A PILOT PROGRAM
BE DEVELOPED IN THAT STATE. I AM ADVISED THAT IT WILL BE
ABOUT A YEAR FROM NOW BEFORE SUCH A PROGRAM IS DEVELOPED
AND PRESENTED TO THE BOARD OF GOVERNORS AND THE SUPREME
COURT OF TEXAS'.
THE COLORADO BAR ASSOCIATION COMMITTEE ON SPECIALIZA-
TION HAS PRESENTED TO THE GOVERNING BOARD OF THE COLORADO BAR
A MOST ADMIRABLY DRAFTED PILOT PROGRAM.
THE FLORIDA BAR COMMITTEE SHOULD DETERMINE WITHIN
THE NEXT SEVERAL MONTHS WHETHER IT WILL RECOMMEND TO THE BOARD
OF GOVERNORS OF THE FLORIDA BAR THAT FLORIDA EMBARK UPON A
PILOT PROJECT.
THE AMERICAN BAR ASSOCIATION INTENDS ULTIMATELY TO
MAKE FINAL SELECTION OF A TOTAL OF THREE (3) STATE PILOT
PROGRAMS WHEN AND AS SUCH PROGRAMS HAVE BEEN IMPLEMENTED.
AFTER SUCH FINAL SELECTIONS, THE AMERICAN BAR_ASSOCIATION

-16-

WILL RECOMMEND THAT ALL OTHER STATE BAR ASSOCIATIONS (EXCEPT

THOSE DESIGNATED FOR EXPERIMENTAL PROGRAMS) AWAIT THE RESULTS
OF AN EVALUATION OF THOSE THREE PROGRAMS, SINCE THE AMERICAN
BAR ASSOCIATION FEELS THAT IT IS NOT DESIRABLE FOR A LARGE
NUMBER OF STATES TO EMBARK UPON EVEN EXPERIMENTAL PROGRAMS IN
SPECIALIZATION BEFORE UNIFORM STANDARDS CAN BE ESTABLISHED
LEST UNNECESSARILY DIVERGENT PROGRAMS BECOME PREMATURELY
CRYSTALIZED. THE AMERICAN BAR ASSOCIATION WILL EVALUATE
THESE PILOT PROGRAMS ON SPECIALIZATION, BOTH FROM THE STAND-
POINT OF THEIR BENEFITS AND THEIR DETRIMENTS, AND THE RESULTS
WILL THEN BE MADE AVAILABLE TO ALL STATE BAR ASSOCIATIONS
AND OTHER INTERESTED GROUPS.
WHILE I CANNOT NOW PREDICT WITH ANY CERTAINTY THAT
THE ACTION TAKEN BY THE AMERICAN BAR ASSOCIATION LAST YEAR
WILL EVER LEAD TO THE DEVELOPMENT OF A NATIONAL PLAN OF LEGAL
SPECIALIZATION, I DO BELIEVE, AND I DO PREDICT, THAT WITHIN
THE NEXT FEW YEARS THE ACTION THERE TAKEN WILL PERMIT A DETER-
MINATION OF WHETHER IT IS BEST THAT LEGAL SPECIALIZATION BE
REGULATED OR BE UNREGULATED. THAT COURSE APPEARS TO ME TO
BE PROPER. I HOPE THAT THE DEVELOPMENT OF PILOT PROGRAMS
IN THE REGULATION OF LEGAL SPECIALIZATION WILL RECEIVE THE
SUPPORT OF LAWYERS THROUGHOUT THE UNITED STATES, REGARDLESS
OF WHETHER THEY NOW FAVOR OR NOW OPPOSE THE CERTIFICATION OF
LEGAL SPECIALISTS. EVEN THOUGH A STATE BAR ASSOCIATION

-17-

DETERMINES THAT IT IS NOT NOW INTERESTED IN THE CONDUCT OF AN

EXPERIMENTAL PROGRAM OF ITS OWN, IT SEEMS CRYSTAL CLEAR TO ME

THAT IT SHOULD AT THE MINIMUM HAVE A COMMITTEE OF LAWYERS WHO

ARE FOLLOWING DEVELOPMENTS IN THIS AREA AND WHO ARE CHARGED

WITH THE RESPONSIBILITY OF EVALUATING THE RESULTS OBTAINED IN

THOSE STATES WHO DO CONDUCT SUCH EXPERIMENTAL PROGRAMS.

THANK YOU.

-18-

j --
:

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 43

VOLUME III

REMARKS BY: CHESTERFIELD SMITH, LAKELAND, FLORIDA
BEFORE: CED'S POLICY FORUM ON MODERNIZING STATE
GOVERNMENT A XHA TRGY USE,

DATE OF
DELIVERY: WEDNESDAY, DECEMBER 16, 1970
TIME: 20 MINUTES

WITHOUT QUESTION, THE FUTURE OF OUR FEDERAL
SYSTEM IS, AND HAS BEEN, IN GRAVE JEOPARDY, THE SEVENTIES
IS THE TIME OF DECISION FOR THE AMERICAN FEDERAL SYSTEM.
IF WE CONTINUE OUR APATHETIC WAYS CONTENT THAT WE ALREADY
HAVE THE BEST OF ALL POSSIBLE GOVERNMENTS WHICH IS THE
COUNSEL OF SOME THEN THE FATE OF STATE GOVERNMENT IS
SETTLED IT WILL SIMPLY AND SURELY PASS AWAY TO THE HISTORY
BOOKS AS A QUAINT AND ARCHAIC FORM OF GOVERNMENT WHICH FAILED.
THIS THEN IS AN AREA WHICH DEMANDS DYNAMIC
LEADERSHIP ON THE PART OF REPRESENTATIVE CITIZENS, AN AREA
OF OPPORTUNITY TO CREATE A NEW INTEREST IN WHAT IS SOMETIMES
CALLED "CREATIVE FEDERALISM".
THE FACT THAT SO MANY STATES, OVER TWO-THIRDS
OF THEM, ARE NOW BEGINNING TO LOOK TO STATE CONSTITU-
TIONAL REFORM IS AN EXTREMELY ENCOURAGING SIGN, IT MEANS
THAT OUR CITIZENS ARE BEGINNING TO TAKE MORE SERIOUSLY

THE POSITION AND THE PLACE AND THE FUNCTION OF STATE
GOVERNMENT.
IN TERMS OF INFLUENCE, IN RELATION. TO THE
NATIONAL GOVERNMENT, THE STATES HAVE BEEN SLIPPING FOR
A LONG TIME. IN MY OPINION, WE CAN LOOK TO TWO EVENTS
IN THE HISTORY OF THIS COUNTRY TO MARK THIS SLIPPAGE,
BOTH OF WHICH CAME INTO FULL FLOWER DURING THE LIFETIME
OF MOST OF US WHO ARE HERE TODAY,. THE FIRST EVENT WAS
THE ADOPTION OF THE SIXTEENTH AMENDMENT, RATIFIED BY ALL
BUT SIX STATES, GIVING TO THE NATIONAL GOVERNMENT IN
1913 WHAT TURNED OUT TO BE THE MOST POWERFUL ADVANTAGE
OF ALL, THE INCOME TAX. SINCE THAT EVENT, MANY SOURCES
OF POWER, WHICH MOST CITIZENS IN 1913 THOUGHT.HAD BEEN
EXCLUSIVELY RESERVED IN THE FEDERAL CONSTITUTION TO THE
STATES, HAVE BEEN ABSORBED BY THE NATIONAL GOVERNMENT.
THE SECOND EVENT OCCURRED IN THE EARLY 1930s,
WHEN THE GREAT DEPRESSION ALL BUT PARALYZED THE STATES,
OUR ECONOMIC COLLAPSE WAS MASSIVE;.- THE STATES COULDN'T
FEED THE HUNGRY- THE STATES COULDN'T COMBAT UNEMPLOYMENT;
THE STATES COULD NOT SAVE THE BANKS. IT MATTERED NOT TO
THE PEOPLE THAT THE .STATES COULD NOT PROPERLY BE HELD
RESPONSIBLE FOR OUR ECONOMIC COLLAPSE,.. THE PEOPLE TURNED,
AND PROPERLY SO., TO THE NATIONAL GOVERNMENT TO CORRECT

THEIR ILLS AND TO SOLVE THEIR PROBLEMS, THAT BEINGS
IN THEIR EYES. THE ONE SOURCE IN WHICH THE .STRENGTH OF
RECOVERY COULD BE FOUND. SO THE ORDEAL OF THE DEPRESSION
GAVE A MOST DAMAGING BLOW TO THE GOVERNMENTAL POWER AND
RESPONSIBILITY OF THE STATES BECAUSE THE PEOPLE WHO. THEN
LOOKED TO THE STATES FOR SOLUTIONS TO THEIR PROBLEMS
FOUND THAT THOSE SOLUTIONS NEVER CAME,
WHEN THOSE CITIZENS THUS LOST FAITH IN THE STATES
AS VIABLE INSTRUMENTS OF GOVERNMENT, THE NEWS MEDIA BECAME,
AND LARGELY HAS REMAINED, UNSYMPATHETIC. POLITICAL
SCIENTISTS BEGAN TO TEACH THAT STATES DID NOT AMOUNT TO
MUCH ANYWAY -- THEIR CRITICISM EACH YEAR SINCE HAS BECOME
EVEN HARSHER.
CERTAINLY, DEVELOPMENTS AT THE FEDERAL LEVEL IN
THE LAST 40 YEARS MANIFESTLY HAVE MITIGATED THE TRADITIONAL
CYCLES OF BUSINESS RECESSION -- NO LONGER DO WE FEEL THE
SUDDEN SURGE OF PERIODIC DEPRESSION. FEDERAL UNEMPLOYMENT
BENEFITS TEND TO PROVIDE A STEADIED ECONOMY; THE FEDERAL
DEPOSIT INSURANCE PLAN HAS ELIMINATED BANK PANICS; THE
FEDERAL SOCIAL WELFARE PLAN HAS ELIMINATED MANY OF OUR
HEALTH PROBLEMS AND THOSE OF DEPENDENT CHILDREN; THE
SOCIAL SECURITY SYSTEM HAS GIVEN HOPE TO OLD AGE.
INDEED, WE MUST RECOGNIZE THAT THESE AND OTHER LIKE CHANGES

-3-

BROUGHT TO AMERICA A NEW KIND OF BROADENED OPPORTUNITY
WHICH RENEWED THE FAITH OF THE PEOPLE IN THE VIABILITY OF
OUR KIND OF DEMOCRACY,
BUT WHAT DID .IT FAIL TO DO? MOST OF US REMEMBER
THE FAMILIAR WORDS OF OUR PRESIDENT OF THIRTY-FIVE YEARS
AGO WHEN HE TALKED ABOUT ONE-THIRD OF THE NATION'S PEOPLE
BEING "ILL-HOUSED, ILL-CLAD, AND ILL-NOURISHED". BUT NOW'
AFTER ALL OF THESE YEARS THE CONCLUSION IS OBVIOUS -- FOR
ALL OF OUR PROGRAMS IN WELFARE, IN EMPLOYMENT, IN HEALTH,
IN INDUSTRY, IN EDUCATION, WE HAVE NOT ENDED THOSE PROBLEMS,
AND WE HAVE MASSIVE TROUBLES IN EACH OF THOSE AREAS YET
TODAY. TODAY, ONE-FIFTH OF THE NATION IS STILL LIVING
IN CONDITIONS OF POVERTY IN THE MIDST OF AN AFFLUENT
SOCIETY. WHAT HAPPENED? FOR ALL OF THEIR CLEVERNESS,
THE FEDERAL PROGRAMS SIMPLY DID NOT REACH FAR ENOUGH,
NOR EFFECTIVELY ENOUGH, NOR WITH ENOUGH FLEXIBILITY, TO
MEET FULLY THE NEEDS OF THE PEOPLE.
IT IS MY POSITION THAT OUR SYSTEM OF GOVERNMENT
HAS FAILED TO ACHIEVE THE MAXIMUM POSSIBLE BENEFIT TO OUR
PEOPLE BECAUSE WE HAVE ALLOWED TOO MUCH POWER TO BE MOVED
TO ONE CENTRAL PLACE -- MORE TO. THE POINT, WE HAVE FAILED
PROPERLY TO USE THE FIFTY OTHER SOURCES OF POLITICAL POWER
AND ACTION CONTEMPLATED IN THE CONSTITUTION OF THE UNITED

STATES -- OUR FIFTY .SOVEREIGN STATES. OUR COUNTRY CANNOT
ENDURE WITHOUT STRONG, EFFECTIVE, MEANINGFUL STATE GOVERN-
MENTS. WE MUST HAVE THEM .OTHERWISE, THERE IS NO FEDERAL
SYSTEM,
IT IS NO VALID ARGUMENT FOR SAVING THE STATES
SIMPLY TO SAY THAT SINCE WE HISTORICALLY HAVE HAD THE
STATES, THEREFORE, WE OUGHT TO SAVE THEM. BUT THERE ARE
SUBSTANTIAL REASONS, -,PERSUASIVE REASONS, FOR THE PRESERVA-
TION OF THE SOVEREIGN .STATES, SOME AMERICANS ARE EXTREMELY
DISTURBED AND PROPERLY .SO ABOUT THE CONCENTRATION OF
ARBITRARY POWER IN INSTITUTIONS FAR REMOVED FROM THE
PEOPLE, THE ORDINARY .CITIZEN SIMPLY FEELS THAT HE IS NOW
LEFT COMPLETELY .OUT OF GOVERNMENT; THERE IS NO WAY THAT
HIS VOICE CAN BE HEARD WHERE IT WILL AFFECT POLICY,
OVER-ORGANIZATION AND CENTRALIZATION IN GOVERNMENT CAN
BE EFFECTIVELY COMBATTED ONLY BY COMPETENCY IN GOVERNMENT
AT ALL LEVELS, THE KIND OF COMPETENCY THAT STIMULATES
CREATIVE IMPROVEMENT, THE KIND OF COMPETENCY THAT ENABLES
US TO DEFEND OURSELVES AGAINST POSSIBLE ABUSES BY EITHER
CENTRALIZED POWER OR PROVINCIAL PREJUDICE.
TO MAKE THE AMERICAN FEDERAL SYSTEM WORK, WE
MUST SOMEHOW DEVELOP PROGRESSIVE AND EFFECTIVE STATE GOVERN-
MENTS. HOW CAN. THAT BE ACCOMPLISHED? THERE IS NO ONE OR

-5-

EASY ANSWER, BUT MY OWN EXPERIENCE LEADS )ME TO THE CON-
CLUSION THAT THE BEST POSSIBLE RESULTS CAN COME FROM AN
ALL-OUT EFFORT TO UPGRADE AND MODERNIZE THAT INSTITUTION
OF OUR SOCIETY RICH IS CALLED: -- THE STATE LEGISLATURE,
WHILE ADMITTEDLY THERE HAS BEEN MUCH PROGRESS IN RECENT
YEARS IN THE IMPROVEMENT OF OUR STATE LEGISLATURES, THERE
IS STILL MUCH THAT NEEDS TO BE DONE IN ALMOST EVERY STATE,
THE PACE AND DIVERSITY OF PROBLEMS FACING OUR STATE LEGIS-
LATURES HAVE INCREASED TO THE POINT THAT ALMOST EVERY
AMERICAN IS AWARE THAT SOMETHING THERE IS DRASTICALLY
WRONG,
WE MUST RECOGNIZE THAT THE WEAKEST LINK IN FULL
UTILIZATION OF OUR AMERICAN FEDERAL SYSTEM IS THE LEGIS-
LATURE OF THE SEVERAL STATES. THEIR DEFICIENCIES MUST BE
CORRECTED BEFORE WE CAN EFFECTIVELY TACKLE THE OTHER
PROBLEMS IN STATE GOVERNMENT, WHILE THAT MAY SOUND LIKE
AN OVERSIMPLIFICATION, EXAMINE THE FACTS FOR A MOMENT.
IF OUR SYSTEM AND NOT THE LAW OF THE STREETS, IS GOING
TO PROVIDE THE SOLUTION, THEN WE MUST USE THAT SYSTEM,
AND WE MUST USE IT FULLY. IT WOULD BE EASY TO TRY TO
SIDE-STEP OR IGNORE PART OF THE SYSTEM -- SPECIFICALLY
THE LEGISLATURE -- BUT WE CAN'T. BECAUSE IT IS THERE.
SHOULD IT BE ABOLISHED? WHAT HAS BEEN OFFERED AS A
REPLACEMENT?

-6-

WHILE I AM SURE THAT EVERYONE HERE WOULD AGREE
IN PRINCIPLE THAT IT WOULD BE A GOOD. THING TO HAVE EFFECTIVE
STATE LEGISLATURES,. THERE MIGHT BE SOME ARGUMENT ABOUT
PRIORITIES, 'THERE ISN'T TIME;' SOME MIG[-T.OBJECT, 'TO
DEAL WITH THE STATE LEGISLATURES AS AN INSTITUTION, WE
HAVE TO DEAL WITH THE PRESSING PROBLEMS AND ISSUES FIRST,
OTHER PROBLEMS AND ISSUES MUST WAIT' SOME WILL SAY,
THEY DEMAND THAT WE DEAL NOW WITH THE URBAN CRISIS; WITH
ENVIRONMENT; WITH EDUCATION; WITH TAX REFORM; WITH YOUTH
AND THEIR EXPECTATIONS; WITH MINORITY RIGHTS. THEY URGE
ACTION ON ALL FRONTS IMMEDIATE ACTION.
I AM JUST AS CONCERNED ABOUT THOSE AND OTHER
PROBLEMS AS ANYONE, BUT I THINK WE NEED FIRST TO DRAW
SOME BASIC CONCLUSIONS.
LATELY. IT HAS APPEARED TO ME THAT MUCH OF OUR
DIFFICULTY IS. THAT WE HAVE BEEN LOOKING AT PROBLEMS FROM
THE WRONG END, THERE IS A CRUCIAL CONNECTION BETWEEN
REFORMING THE STATE LEGISLATURE AND COPING WITH THE
PROBLEMS OF OUR TIME.. THESE PROBLEMS WITHOUT DOUBT DE-
SERVE OUR IMMEDIATE CONCERNs BUT WHAT CONCERNS ME MOST
IS OUR INABILITY TO DEAL WITH THESE PROBLEMS FROM A PLACE
OF AUTHORITY. THAT PLACE OF AUTHORITY FIUSI BE CLOSE TO
THE PEOPLE'S OWN NEEDS AND DESIRES, AND OBVIOUSLY THE

-7-

PLACE OF AUTHORITY WHICH CAiN;BE CLOSEST TO THE PEOPLE'S
OWN NEEDS AND DESIRES IS THE STATE LEGISLATURE. YET WE
KNOW THAT FOR THE LEGISLATURE TO BE. THAT PLACE OF AUTHORITY
IT MUST BE A CAPABLE- RESPONSIVE- AND INNOVATIVE BODY -
NOT A REACTIONARY BODY.
I BELIEVE THAT OUR STATE LEGISLATURES CAN BE
ALL OF THESE THINGS. IF YOU SAY THAT YOUR LEGISLATURE
WON'T, THEN I SAY LOOK AT WHY IT WON'T, OR LOOK AT HOW
IT COULD BE ENCOURAGED, TO ASSUME ITS RESPONSIBILITY AND
OBLIGATION FOR THE WELL-BEING OF THE STATE AS A WHOLE.
TO PUT .IT ANOTHER WAY, A CREATIVE LEGISLATURE
WOULD COMPEL THE EXERCISE OF LEADERSHIP, COMPETENCE, AND
CREATIVITY ON THE PART OF .OTHER ELEMENTS OF STATE GOVERN-
MENT BY CONTRIBUTING TO A DYNAMIC TENSION BETWEEN ALL
BRANCHES AND LEVELS OF LOCAL, STATE AND NATIONAL GOVERN-
MENT. THIS, AFTER ALL, WAS WHAT WAS INTENDED BY OUR
FOUNDING FATHERS IN SETTING UP A SYSTEM OF CHECKS AND
BALANCES A SYSTEM OF COMPLEMENTARY POWER.
LET ME SUGGEST THAT WE THINK OF THE LEGISLATURE
AS AN ARENA IN WHICH POLICY .IS MADE BY ARRIVING AT -PARTIAL,
INCONCLUSIVE,' UNEASY, TENTATIVE AND. TEMPORARY SETTLEMENTS;
- THIS YEAR'S SOLUTIONS TO THE MORE URGENT PROBLEMS OF
THIS DAY, THOSE SETTLEMENTS WILL BE REVISED YEARLY AS

-8-

OUR COLLECTIVE PERCEPTION OF PROBLEMS CHANGES, AS OUR
ART ADVANCES, AND AS THE POLITICAL CLOUT OF THE PARTIES
AT INTEREST CHANGE. THE LEGISLATURE TRULY IS ONLY AN
ARENA. IT IS AN ENVIRONMENT FOR DECISION-MAKING RATHER
THAN A TOOL FOR DECISION-MAKING.
THE LEGISLATURE HAS GREAT UNUSED AUTHORITY. FOR
INSTANCE, A STATE LEGISLATURE, IF IT WISHED, COULD MERGE
OUR COUNTIES .IT COULD REDRAW THE BOUNDARIES OF OUR CITIES;
MORE IMPORTANTLY, IT COULD DO DOZENS OF THINGS WHICH
NEITHER YOU, NOR I. NOR ANYONE ELSE, HAS EVEN THOUGHT OF
YET,
IT IS THIS CENTRALITY OF THE STATE LEGISLATURE
IN OUR POLITICAL SYSTEM THAT I WANT YOU TO CAPTURE, -NOT
THE STATE LEGISLATURE AS WE HAVE SEEN IT OPERATE DURING
THE LAST TWO GENERATIONS, OR EVEN TODAY, BUT THE LEGIS-
LATURE AS IT COULD OPERATE IF IT HAD A SENSE OF ITS .OWN
POWER, A SENSE OF DIGNITY, A SENSE OF RESPONSIBILITY,.
IN EACH OF THE MAJOR PROBLEM AREAS WHICH WE IN
FLORIDA FACE TAX REFORM, POLLUTION AND CONTROL OF THE
ENVIRONMENT, CRIME.CONTROL, THE QUALITY OF URBAN LIFE,
- AMONG OTHERS -- MANY CONCERNED. FLORIDA CITIZENS HAVE
LONG BELIEVED THAT OUR STATE LEGISLATURE MUST TAKE A
LEADERSHIP ROLE IN FINDING AND IMPLEMENTING SOLUTIONS,

-9-

THEY HAVE BELIEVED THAT IT WAS IMPORTANT THAT THE STATE
ACT BECAUSE IN THESE AREAS IN YEARS PAST THE FEDERAL GOVERN-
MENT HAS OFFERED SOLUTIONS WITH ONLY LIMITED SUCCESS.
THE TYPICAL FLORIDA CITIZEN FOR MANY YEARS HAS
BEEN NEITHER AWARE NOR INTERESTED IN WHO WOULD REPRESENT
HIM IN THE STATE'S LEGISLATURE, ALTHOUGH CAMPAIGNS FOR
GOVERNOR IN FLORIDA OFTEN DO GENERATE A CERTAIN AMOUNT OF
HOOPALA AND LOW-LEVEL DEBATE, THE AVERAGE CITIZEN COULD
CARE LESS WHO GOES TO THE STATE LEGISLATURE AND IN THE
PAST, WE OFTEN HAVE NOT SENT MEN OF THE HIGHEST INTEGRITY.
ALTHOUGH THAT LACK OF CITIZEN INTEREST AND
AWARENESS CONTRIBUTED TO THE DECLINE OF FLORIDA'S CAPACITY
TO COPE MEANINGFULLY WITH ITS PROBLEMS, I DO NOT FEEL
THAT IT WAS THE PRIME CAUSE FOR THAT DECLINE. THE PRIME
CAUSE WAS THE LACK OF APPROPRIATE AND ADEQUATE GOVERNMENTAL
MACHINERY AT THE STATE LEVEL. IN OTHER WORDS, THE STATE
OF FLORIDA WAS SIMPLY NOT EQUIPPED FOR THE JOB OF RESPONSIBLE
DECISION-MAKING. AND AT THE ROOT OF THIS PROBLEM WAS AN
ANTIQUATED; UNDER-STAFFED, MALAPPORTIONED, INSENSITIVE
LEGISLATURE. HAPPILY THAT CHARACTERIZATION IS NO LONGER
DESCRIPTIVE OF THE FLORIDA LEGISLATURE,
IN 1966; THE FEDERAL DISTRICT COURT DECLARED
THAT THE EXISTING HISTORICAL APPORTIONMENT FORMULA OF

THE FLORIDA LEGISLATURE WAS UNCONSTITUTIONAL1 AND ADOPTED
.ITS OWN APPORTIONMENT PLAN WHICH IS STTLL 'IN EFFECT. MANY
OF US NOW RECOGNIZE THAT REAPPORTIONMENT, DESPITE THE FACT
THAT IT HAD TO BE ACHIEVED. THROUGH A FEDERAL COURT ORDER,
SAVED FLORIDA'S GOVERNMENT,
WE PRIDE OURSELVES ON OUR SUCCESS IN THE LAST
THREE YEARS OF VIRTUALLY RESHAPING ALL OF FLORIDA'S
GOVERNMENT. IN 1968, WE ADOPTED A NEW CONSTITUTION WHICH
EFFECTIVELY BROUGHT FLORIDA GOVERNMENT AS A WHOLE INTO
THE 20TH CENTURY. WE HAVE ADOPTED PROCEDURAL AND SUBSTAN-
TIVE REFORMS IN THE LEGISLATIVE BRANCH WHICH CAUSES IT TO
BE RANKED AS AMONG THE BEST ORGANIZED LEGISLATIVE BODIES
*IN THE UNITED STATES. WE ACHIEVED ANNUAL LEGISLATIVE
SESSIONS; AN ORGANIZATIONAL SESSION OF THE LEGISLATURE
IMMEDIATELY AFTER THE GENERAL ELECTION IN WHICH BOTH
LEGISLATIVE HOUSES ARE FULLY ORGANIZED AND STAFFED; AN
ORIENTATION SESSION FOR NEW LEGISLATIVE MEMBERS; A
PERMANENT STANDING COMMITTEE SYSTEM; PREFILING OF LEGIS-
LATIVE BILLS; AND AN INCREASED USE OF OUTSIDE CONSULTANTS
BY THE LEGISLATURE. PERHAPS MOST IMPORTANT.OF ALL, THE
FLORIDA LEGISLATURE, ITS COMMITTEES. AND ITS INDIVIDUAL
MEMBERS, NOW ARE SEVERD BY WHAT PROBABLY IS ONE OF THE
MOST CAPABLE, EFFICIENT LEGISLATIVE STAFFS IN THE NATION,

-11-

THE SALARY OF LEGISLATORS HAS BEEN ESTABLISHED
AT $12~000,00 A YEAR, COMPARED WITH THE $1~ 200.00 PAID
ANNUALLY PRIOR THERETO, A CODE OF ETHICS FOR BOTH LEGIS-
LATORS AND LEGISLATIVE EMPLOYEES HAS BEEN PROMULGATED.
AN OMNIBUS LEGISLATIVE BUDGET IS NOW INCLUDED IN THE
GENERAL APPROPRIATIONS BILL, NEW ADMINISTRATIVE DIVISIONS
OF THE STATE LEGISLATURE HAVE BEEN ESTABLISHED TO DEAL
WITH ITS LOGISTICS: A PERSONNEL DIVISION, A PURCHASING
DIVISION, A FISCAL ACCOUNTING DIVISION, AND A DATA PROCES-
SING DIVISION1 LEGISLATIVE PERSONNEL HAVE A CAREER SERVICE
PLAN LIKE THAT OF OTHER STATE EMPLOYEES, WHILE THE PRE-
AUDIT OF LEGISLATIVE SPENDING IS CONDUCTED BY THE STATE
COMPTROLLER, AS IS THAT OF ALL OTHER STATE AGENCIES, AN
INDEPENDENT, OUTSIDE CERTIFIED PUBLIC ACCOUNTANT IS HIRED
TO CONDUCT AN ANNUAL PERFORMANCE AUDIT OF THE LEGISLATURE,
ELECTRIC VOTING BOARDS HAVE BEEN INSTALLED, AS HAS A
COMPUTER WHICH HAS PROVEN TO BE OF INVALUABLE AID TO
LAW-MAKING AND TO KEEPING TRACK OF PENDING LEGISLATION,
AN OFFICE OF INFORMATION SERVICES TO COORDINATE THE DIS-
SEMINATION OF LEGISLATIVE NEWS THROUGHOUT THE STATE HAS
BEEN ESTABLISHED. MEETINGS OF THE STANDING COMMITTEES OF
BOTH HOUSES ARE HELD THROUGHOUT THE STATE SO THAT THE
PUBLIC MIGHT COMMENT UPON ALL MEASURES OF STATE-WIDE
INTEREST.

-12-

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