Speeches by Chesterfield - Vol. VI, 85-100. 1973-1974

VOLUME VI:

SPEECH NUMBER TITLE OR GROUP ADDRESSED

#85 CONFERENCE ON CONTINUING LEGAL
EDUCATION AND THE LAW SCHOOLS
ASSOCIATION OF AMERICAN LAW SCHOOLS
AND AMERICAN LAW INSTITUTE/AMERICAN
BAR ASSOCIATION JOINT COMMITTEE -
Chicago, Illinois
October 20, 1973

#86 THE ORGANIZED BAR AND THE JUDICIARY
.(PLUS WATERGATE STATEMENT) -
AMERICAN JUDGES ASSOCIATION
ANNUAL CONFERENCE -
Boston, Massachusetts
October 22, 1973

#87 REMARKS OF CHESTERFIELD SMITH
RELATING TO RECENT GOVERNMENTAL
ACTIONS CONCERNING THE SPECIAL
PROSECUTOR IN THE WATERGATE
AFFAIR -
NATIONAL LEGAL AID AND DEFENDER
ASSOCIATION -
CoronHado .Heach, -Caifoarni-a
October 25, 1973.

#88 SYMPOSIUM ON THE ABA STANDARDS
RELATING TO THE URBAN POLICE
FUNCTION -
Quantico, Virginia.
October 28, 1973

#89 THE ORGANIZATION OF THE ABA
November 6, 1973

VOLUME VI (cont.)

SPEECH NUMBER TITLE OR GROUP ADDRESSED

#90 UNVEILING CEREMONY AND DEDICATION
OF A MEMORAIL PORTRAIT IN MEMORY
OF JUDGE WILLIAM ALLAN McRAE, JR. -
Jacksonville, Florida
November 12, 1973

#91 STRONG STATE CONSTITUTIONS AS THE
KEY TO A VIABLE FEDERAL SYSTEM
79TH NATIONAL-CONFERENCE ON GOVERNMENT -
Dallas, Texas
November 15, 1973

#92 THE AMERICAN BAR ASSOCIATION AND
THE RIGHTS OF THE MENTALLY DISABLED -
INSTITUTE OF THE LEGAL RIGHTS OF
THE MENTALLY HANDICAPPED -
Dallas, Texas
November 15, 1973

#93 DEDICATION CEREMONIES OF THE
C. BLAKE McDOWELL LAW CENTER -
Akron, Ohio
November 18, 1973

#94 WATERGATE: A CHALLENGE TO
EDUCATION -
ANNUAL MEETING OF THE NATIONAL COUNCIL
OF THE SOCIAL STUDIES CLINIC ON
"LAW STUDIES IN THE SCHOOLS" -
San Francisco, California
November 21,.1973

#95 METHODS OF JUDICIAL SELECTION:
A QUESTION OF EXCELLENCE OR
MEDIOCRITY -
PUBLIC HEARINGS ON MERIT SELECTION,
SPECIAL COMMITTEE ON JUDICIAL
SELECTION OF THE REPRESENTATIVE
ASSEMBLY OF THE STATE BAR OF
MICHIGAN -
Detroit, Michigan
December 17, 1973

VOLUME VI (cont.)

SPEECH NUMBER TITLE OR GROUP ADDRESSED

#96 REACTIONS TO WATERGATE: THREATS
TO JUSTICE?
COMMENCEMENT EXERCISES -
UNIVERSITY OF MIAMI SCHOOL OF LAW
Coral Gables, Florida
December 22, 1973

#97 REACTIONS TO WATERGATE:
THREATS TO JUSTICE? -
PRESIDENT'S CONFERENCE -
FORECAST '74 -
Tampa, Florida
December 27, 1973

#98 ASSOCIATION OF AMERICAN LAW
SCHOOLS THEME DAY PROGRAM -
AALS ANNUAL MEETING -
New Orleans, Louisiana
December 28, 1973

#99 PROFESSIONAL DISCIPLINE: A CALL
TO ACTION -
REGIONAL CONFERENCE OF BAR COUNSEL
SPONSORED BY THE ABA STANDING
COMMITTEE ON PROFESSIONAL
DISCIPLINE -
Atlanta, Georgia
January 16, 1974

#100 LAWYER COMPETENCE WHOSE
RESPONSIBILITY?
PENNSYLVANIA BAR ASSOCIATION
Harrisburg, Pennsylvania
January 25, 1974

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 85

VOLUME VI

ADDRESS OF:

BEFORE:

CHESTERFIELD SMITH

PRESIDENT

AMERICAN BAR ASSOCIATION

CONFERENCE ON CONTINUING LEGAL

EDUCATION AND THE LAW SCHOOLS

ASSOCIATION OF AMERICAN LAW SCHOOLS

AND AMERICAN LAW INSTITUTE/AMERICAN

BAR ASSOCIATION JOINT COMMITTEE

AIR CANADA-AIR FRANCE ROOM

REGENCY HYATT O'HARE HOTEL

CHICAGO, ILLINOIS

DATE OF DELIVERY:

SATURDAY, OCTOBER 20, 1973

6:30 P.M.

TITLE:

TWENTY MINUTES

K-.

TIME:

ACCESS TO QUALITY LEGAL SERVICES IS SEVERELY LIMITED--

IF AVAILABLE AT ALL -- TO LARGE SEGMENTS OF OUR POPULATION.

IT IS RELIABLY ESTIMATED THAT OVER 80% OF OUR CITIZENS --

MANY IN DAILY NEED OF LEGAL COUNSEL -- NEVER CONSULT ATTORNEYS.

THE WEALTHY -- WHETHER INDIVIDUALS OR CORPORATE ENTITIES --

CONTINUE TO HAVE ACCESS TO THE VERY BEST LEGAL TALENT -- O,E,0,

LEGAL SERVICES AND LEGAL AID-TYPE PROGRAMS HAVE MADE LEGAL

SERVICES MUCH MORE READILY AVAILABLE TO AT LEAST A SUBSTANTIAL

PORTION OF THE VERY POOR,

THE VAST MAJORITY OF AMERICANS,

HOWEVER -- THOSE WHO FALL BETWEEN THESE TWO EXTREMES -- ARE

NOW EFFECTIVELY SHUT OUT OF THE LEGAL MARKETPLACE,

IT SEEMS TO ME THAT THE PRIMARY -- BUT CERTAINLY NOT THE

ONLY -- CAUSE FOR THIS SITUATION IS ONE OF ECONOMICS, LAWYERS'

-2-

SERVICES COST MORE THAN THE CONSUMER IS WILLING TO PAY FOR

THOSE SERVICES -- SO EVEN THOUGH THE SERVICES ARE NEEDED, THEY

ARE NOT UTILIZED. WE ALL MUST READILY ACKNOWLEDGE THAT QUALITY

LEGAL SERVICE IS AN EXPENSIVE PRODUCT AND THAT USUALLY, SUCH

SERVICES ARE OUT OF THE MONETARY REACH OF OUR AVERAGE CITIZEN.

As PRESIDENT OF THE ABA, I FEEL THAT SUCH A SITUATION IS

INTOLERABLE, THE RIGHT OF READY ACCESS TO THE COURTS -- THE

RIGHT TO EVEN-HANDED JUSTICE FOR ALL CITIZENS, WHICH CAN ONLY

BE OBTAINED THROUGH LAWYERSj IS BASIC TO A SOCIETY RULED BY LAW.

YET, WITHOUT MUCH MORE QUALITY LAWYER ASSISTANCE THAN IS NOW

ECONOMICALLY AVAILABLE TO MANY -- THAT JUSTICE -- THAT ACCESS

TO THE COURTS -- IS AND WILL BE -- AN ILLUSORY RIGHT.

IN ORDER TO REMAIN PROFESSIONALLY\INDEPENDENT, THE

-3-

LAWYERS WHO COMPRISE THE PRACTICING BAR MUST BE ECONOMICALLY

STRONG3 BELIEVING THAT, I THEN SUGGEST THAT THE CRUX OF THE

PROBLEM IS NOT THE PRESENT AMOUNT OF PECUNIARY REWARD WHICH

THE LAWYER RECEIVES FOR HIS WORK, BUT RATHER THE INABILITY OF

THE PRESENT STRUCTURES OF THE LEGAL PROFESSION TO DELIVER

INEXPENSIVE LEGAL SERVICE TO THE PUBLIC AND STILL ADEQUATELY

REWARD THE LAWYER.

PARTIAL SOLUTIONS, SUCH AS GROUP LEGAL PLANS, PREPAID

LEGAL INSURANCE, LAWYER REFERRAL PLANS, LEGAL CLINICS, AND

PUBLIC INTEREST LAW FIRMS ARE SPRINGING UP ALL OVER THE COUNTRY

IN ATTEMPTS TO -- AT LEAST PARTIALLY -- MEET THIS NEED.

IT IS MY PERSONAL BELIEF THAT WE ARE ON THE THRESHOLD

OF A VIRTUAL REVOLUTION IN METHODS OF DELIVERING LEGAL SERVICES,

-4-

I SUGGEST THAT THE PARAMOUNT TASK OF THE ENTIRE LEGAL COMMUNITY

AT THIS PARTICULAR TIME MUST BE TO DEVISE NEW SYSTEMS, OR TO

MODIFY THE OLD SYSTEMS, FOR THE DELIVERY BY LAWYERS TO THEIR

CLIENTS OF LEGAL SERVICES, UNLESS THAT IS DONE, WE WILL

CONTINUE OUR PRESENT FAILURE OF NOT PROVIDING QUALITY LEGAL

SERVICES AT REASONABLE PRICES TO ALL OUR CITIZENS.

IT IS UNDERSTANDABLE THAT CONTINUING LEGAL EDUCATION

OF LAWYERS WHO ARE PRESENTLY PRACTICING REPRESENTS ONE OF THE

MOST IMPORTANT TOOLS FOR ACHIEVING THIS GOAL, OUR SOCIETY IS

EXPERIENCING CHANGE AND INCREASING IN COMPLEXITY AT GEOMETRIC

RATES. AS THE PACE OF SOCIETY QUICKENS, SO DOES THAT OF THE

LAW, THE PRACTITIONER MUST INCREASINGLY SPEND MORE TIME JUST

KEEPING UP WITH NEW DEVELOPMENTS IN THE tAW. THE RISING

-5-

EXPECTATIONS, EDUCATION, AND SOPHISTICATION OF THE PUBLIC

REQUIRE FURTHER THAT LAWYERS BE EVEN BETTER PREPARED THAN

FORMERLY TO HANDLE CLIENT PROBLEMS. LAWYERS, THUS, MUST

CONTINUALLY UPDATE THEIR KNOWLEDGE AND ENHANCE THEIR SKILLS IN

ORDER TO PROVIDE QUALITY SERVICE TO AS MANY CLIENTS AS POSSIBLE,

I KNOW OF NO BETTER WAY OF ACCOMPLISHING THAT GOAL THAN QUALITY

POST-ADMISSION EDUCATIONAL PROGRAMS, THROUGHOUT THE PROFESSION,

THERE IS A CONSENSUS -- RECOGNIZED BY ALL LAWYERS --

THAT SUCH IS TRUE -- THAT POST-ADMISSION EDUCATION IS A NECESSITY.

AND LAWYERS HAVE REPEATEDLY DEMONSTRATED THAT THEY WILL SUPPORT

CONTINUING LEGAL EDUCATION -- THEY WILL PAY WELL TO BECOME

BETTER AT THEIR CHOSEN PROFESSION. As I SEE IT, THE ONLY

UNRESOLVED QUESTION IS WHAT IS THE BEST VEHICLE FOR THAT EFFORT,

-6-

IT HAS ALWAYS BEEN MY PERSONAL POSITION THAT THE RESPONSIBILITY

FOR DEVISING THAT VEHICLE SHOULD BE AN UNDERTAKING OF THE

ORGANIZED BAR, EVEN THOUGH I READILY ACKNOWLEDGE THAT IT WILL BE

IMPOSSIBLE FOR THE BAR TO DISCHARGE THIS RESPONSIBILITY IN THE

MOST EFFECTIVE AND EFFICIENT WAY WITHOUT CLOSE COOPERATION AND

COORDINATION WITH THE.LAW SCHOOLS,

DESPITE THE SIGNIFICANT AND WONDERFUL WORK BY THE JOINT

AMERICAN LAW INSTITUTE/AMERICAN BAR ASSOCIATION COMMITTEE,

AS WELL AS BY ORGANIZATIONS WORKING ON CONTINUING LEGAL

EDUCATION, THE PRESENT AND PAST CONTINUING LEGAL EDUCATION

PROGRAMS PUT ON THROUGHOUT OUR NATION -- IN THE MAIN -- HAVE

BEEN LESS THAN ADEQUATE MOST PROGRAMS ARE TOO COSTLY -- BOTH

IN TIME AND MONEY -- AND CARRY LOW RETENTIVE VALUE, I SUGGEST

-7-

THAT THERE IS DESPITE ALMOST HEROIC EFFORTS BY VARIOUS

ORGANIZATIONS -- STILL CONSIDERABLE DUPLICATION OF EFFORT, THE

PROGRAMS PRESENTED BY THE STATES, EITHER THROUGH UNIVERSITY AND

COLLEGE EXTENSION SERVICES, OR THROUGH THE STATE AND LOCAL BAR

ASSOCIATIONS, ARE OFTEN UNCOORDINATED AND UNRESPONSIVE TO

PROGRAMS OF OTHER ENTITIES, IT SEEMS TO ME THAT IF WE CONTINUE

TO FRAGMENT OUR EFFORTS, QUALITY CONTINUING LEGAL EDUCATION

WILL NOT BE MADE AVAILABLE TO PRACTICING ATTORNEYS AT THE COST

AND QUALITY THEY DESERVE, IN ESSENCE, I AM SAYING THAT THE

NEED THE DESIRABILITY -- THE PRACTICALITY -- FOR

CONTINUING PROFESSIONAL EDUCATION HAS NOW BEEN RECOGNIZED BY

ALL SEGMENTS OF THE BAR. IT IS HERE -- AND IT IS A BIG

BUSINESS, THE AMERICAN BAR ASSOCIATION AS THE NATIONAL VOICE

-8-

OF THE LEGAL PROFESSION MUST ACT AS THE CATALYST AT THE

NATIONAL LEVEL FOR QUALITY AND INNOVATIVE CONTINUING LEGAL

EDUCATION PROGRAMS.

THE HOUSE OF DELEGATES OF THE ASSOCIATION

HAS THUS DIRECTED THAT THE NEXT GREAT EFFORT OF THE ASSOCIATION

WILL BE TO COORDINATE, CORRELATE, AND INSURE A MASSIVE PROGRAM

OF POST-ADMISSION EDUCATION FOR THE ENTIRE PROFESSION.

AS THE NATIONAL ORGANIZATION OF THE LEGAL PROFESSION1

THE ASSOCIATION MUST, OF COURSE, COORDINATE ANYTHING IT DOES

WITH THE AMERICAN ASSOCIATION OF LAW SCHOOLS AND THE INDIVIDUAL

LAW SCHOOLS WHICH ARE ITS MEMBERS -- WITH THE STATE AND LOCAL

BAR ASSOCIATIONS WHO TOGETHER CONTROL THE ASSOCIATION'S HOUSE

OF DELEGATES -- WITH OTHER EXISTING ORGANIZATIONS EMBARKED

UPON CLE EFFORTS, AND OF COURSE, ABOVE ALL, WITH ITS OLD AND

-9-

VALUED PARTNER IN THIS AREA, THE AMERICAN LAW INSTITUTE, LEGAL

EDUCATORS -- I BELIEVE -- CAN AND MUST PROVIDE LEADERSHIP FOR

THE ASSOCIATION AND ALL OTHER SEGMENTS OF THE ORGANIZED BAR IN

SUCH A NATIONAL.PROGRAM.

THIS WILL, OF NECESSITY, REQUIRE MANY

LEGAL ACADEMICIANS TO BECOME MORE ACTIVE IN THE BAR AT THE

NATIONAL, STATE, AND LOCAL LEVELS.

I HAVE LONG CONTENDED THAT

ONE OF THE GREAT FAILURES OF THE ORGANIZED BAR HAS BEEN THAT

LEGAL ACADEMICIANS WERE NOT, IN LARGE MEASURE, HEAVILY INVOLVED

IN THE WORK OF THE BAR, AND THUS, THE EXPERTISE AND INTELLECTUAL

ABILITIES OF MANY OF OUR FINEST LEGAL MINDS HAVE BEEN MISSING

FROM OUR WORK.

I ACKNOWLEDGE THAT ONE OF THE DIFFICULTIES HAS BEEN THAT

LAW PROFESSORS ARE OFTEN NOT ADMITTED'Tb PRACTICE IN THE STATES

-10-

IN WHICH THEIR LAW SCHOOLS ARE LOCATED, AND THAT THEY ARE NOT

PERMITTED TO BELONG TO THE STATE AND LOCAL BARS. PROFESSORS,

BEING A HIGHLY MOBILE GROUP, MAY LIVE AND TEACH WITHIN FOUR OR

FIVE STATES WITHIN THEIR PROFESSIONAL CAREERS, PERSONALLY, I

SUPPORT, AND EXPECT TO SEE IN NOT TOO MANY YEARS -- A TYPE OF

NATIONAL BAR EXAM FOR ALL LAWYERS. IF SUCH A BAR EXAM SHOULD

BE DEVELOPED, LAW PROFESSORS AND LAWYERS WHO WANT TO TAKE THIS

MORE EXTENSIVE AND INTENSIVE EXAM RATHER THAN ONE DESIGNED BY

ONLY ONE STATE CAN READILY PRACTICE OR BE ADMITTED TO THE BAR

IN ANY STATE,

IT IS UNREASONABLE TO EXPECT EITHER A LAW

PROFESSOR OR A PRACTITIONER WITH A NATIONAL PRACTICE TO TAKE

A BAR EXAM IN EACH STATE IN WHICH THEY EITHER TEACH OR PRACTICE,

BUT NEVERTHELESS, THE ACADEMIC COMMUNITY SHOULD AND MUST --

-11-

IF WE ARE TO EXCEL -- BECOME MORE ACTIVE IN THE ENTIRE SPECTRUM

OF THE LEGAL PROFESSION. I FORESEE REQUIREMENTS ON THE

IMMEDIATE HORIZON THAT LAWYERS PERIODICALLY RECERTIFY THEIR

CONTINUING COMPETENCE AS A LAWYER THROUGH REEXAMINATION OR

SOME OTHER METHOD, PASSING A BAR EXAM ONE TIME IN YOUR LIFE

IS NOT SUFFICIENT EVIDENCE OF CURRENT COMPETENCE WHEN THE

ENTIRE BODY OF THE LAW TURNS COMPLETELY OVER EVERY FEW YEARS.

SPECIALIZATION, WHICH HAS LONG BEEN AN INTEGRAL PART OF THE

PRACTICING BAR, HAS IN DRAMATIC PROPORTION INCREASED THE DEMANDS

FOR MORE INTENSIVE SPECIALIZED INSTRUCTION IN THE LAW SCHOOLS,

OMNICOMPETENCE OF THE LAWYER IS A MYTH -- AN IMPOSSIBLE DREAM

AND MANY STATES ARE IN THE PROCESS RIGHT NOW OF ESTABLISHING

NEW AND DIFFERENT PROCEDURES FOR DETERMINING LEGAL PROFICIENCY.

-12-

IN LIGHT OF THE NEW DIRECTIONS IN THE-DELIVERY OF LEGAL SERVICES

NOW BEING PREPARED, THE LAW SCHOOL EDUCATION PROCESS ITSELF IS

UNDER EXTENSIVE SCRUTINY AND REEVALUATION.

THE AMERICAN BAR ASSOCIATION HAS APPOINTED A SPECIAL

COMMITTEE FOR THE STUDY OF LEGAL EDUCATION, WHICH IS UNDERTAKING

AN EXAMINATION OF ALL FACETS OF LEGAL EDUCATION,

THIS COMMITTEE

WILL STUDY PRESENT METHODS AND ALTERNATIVE METHODS FOR EDUCATING

FUTURE LAWYERS, THEY WILL CONSIDER, FOR INSTANCE, SERIOUS

QUESTIONS SUCH AS: WHY SHOULD ALL ATTORNEYS BE EDUCATED THE

SAME WAY WHEN THE REQUIREMENTS OF THEIR FUTURE PRACTICE ARE

SO DEMONSTRABLY DIFFERENT? SHOULD DURATION OF BOTH PRE-LAW AND

LAW SCHOOL BE SHORTENED OR LENGTHENED?

I BELIEVE THAT THE LAW SCHOOL SHOULD CONTINUE TO BE A

-13-

VITAL HUB OF THE LEGAL PROFESSION. I BELIEVE THAT LAW SCHOOLS

MUST NOT ONLY TRAIN LAW STUDENTS, BUT ALSO SIGNIFICANTLY

CONTRIBUTE TO THE CONTINUED PROFESSIONAL EDUCATION OF ALL

LAWYERS THROUGHOUT THEIR ENTIRE PROFESSIONAL CAREERS. THE LAW

SCHOOL MUST FURTHER BE A LABORATORY FOR CONTINUED EXPERIMENTATION

WITH METHODS OF PROVIDING BETTER LEGAL SERVICES TO OUR PUBLIC.

THE ADVENT OF LEGAL CLINICS IN THE LAW SCHOOLS WAS A WELCOME

DEVELOPMENT TO THE PROFESSION, AND ITS IMPORTANCE IS ONLY NOW

BECOMING FULLY APPARENT TO ALMOST ALL PRACTICING LAWYERS.

IT IS MY OWN CONTENTION THAT REGARDLESS OF PAST

DISCLAIMERS OF RESPONSIBILITY IN THESE AREAS BY SOME WITHIN

THE LEGAL ACADEMIC COMMUNITY THAT IT IS -- AND HAS BEEN -- A

RESPONSIBILITY OF THE LAW TEACHER, AND THE LAW SCHOOL, AS WELL

-14-

AS THE INDIVIDUAL PRACTITIONER, AND THE ORGANIZED BAR TO

DEVELOP AND FOSTER CONTINUING EDUCATION OF THE BAR, LAWYERS

AND LAW TEACHERS MUST WORK HAND-IN-HAND IN OUR CHANGING

PROFESSIONAL ENVIRONMENT.

THE LAW SCHOOLS, IN CONJUNCTION

WITH THE ORGANIZED BAR, HAVE A DUTY TO THE PROFESSION AND THE

PUBLIC TO PROVIDE VIGOROUS LEADERSHIP IN THE TECHNICAL --

ETHICAL -- AND PROFESSIONAL -- EDUCATION OF THE ENTIRE BAR ON

A CONTINUING BASIS, BOTH BEFORE ADMISSION AND AFTER ADMISSION.

IT IS ONLY THROUGH SUCH AN EFFORT THAT THE LEGAL PROFESSION AS

A UNIT CAN BETTER DISCHARGE ITS RESPONSIBILITY TO PROVIDE QUALITY

LEGAL COUNSEL TO OUR CITIZENS. IN BEHALF OF THE ASSOCIATION,

I PLEDGE OUR SINCERE AND CHEERFUL COOPERATION WITH ALL LAWYERS

AND LEGAL GROUPS IN EFFECTING A BETTER SYSTEM OF CONTINUING

-15-

LEGAL EDUCATION, WE SHALL SHARE OUR PART OF THE BURDEN, BOTH

BY CONTINUING OUR LONG AND EFFECTIVE PARTNERSHIP WITH THE

AMERICAN LAW INSTITUTE AND BY MOVING ALONE AND WITH OUR OWN

RESOURCES TO MEASURE UP TO THE LEADERSHIP RESPONSIBILITY WHICH

IS SO UNIQUELY THAT OF THE ASSOCIATION AT THE NATIONAL LEVEL

IT SERVES LITTLE PURPOSE FOR US TO ADMIT THAT WE HAVE FAILED

TO DISCHARGE THAT RESPONSIBILITY IN THE PAST. -- MUCH MORE

IMPORTANT TO YOU -- TO THE LEGAL PROFESSION -- AND TO SOCIETY -

IS OUR STEADFAST DETERMINATION TO NOW ACCEPT THE RESPONSIBILITY

THAT WE SHOULD HAVE ACCEPTED LONG AGO, CLE IS NOW AMONG OUR

HIGHEST PRIORITIES, AND WE WILL HENCEFORTH GIVE MUCH MORE OF

OUR TIME, OUR EFFORTS, AND OUR FINANCIAL RESOURCES TO RECTIFY,

IF POSSIBLE, OUR PAST DEFICIENCIES IN- TNIS AREA.

-16-

As A MEMBER OF THE JOINT COMMITTEE OF THE AMERICAN LAW

INSTITUTE/AMERICAN BAR ASSOCIATION ON CONTINUING LEGAL

EDUCATION, I THANK YOU FOR ATTENDING THIS MEETING AND MAKING

A CONTRIBUTION TO OBTAINING A MORE EFFECTIVE UTILIZATION OF

THE NATION'S FACILITIES WHICH ARE OR CAN BE DEVOTED TO THE

CONTINUING EDUCATION OF THE PRACTICING BAR.

THANK YOU.

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 86

VOLUME VI

CHESTERFIELD SMITH

PRESIDENT

AMERICAN BAR ASSOCIATION

AMERICAN JUDGES ASSOCIATION

ANNUAL CONFERENCE

HARVARD LAW SCHOOL

BOSTON, MASSACHUSETTS

DATE OF DELIVERY:

TITLE:

MONDAY, OCTOBER 22, 1973

THE ORGANIZED BAR AND THE JUDICIARY
(PLUS WATERGATE STATEMENT)

FIFTEEN MINUTES

BEFORE:

PLACE:

ADDRESS OF:

TIME:

LAWYERS AND JUDGES -- AS OFFICERS OF THE COURTS --

TOGETHER BEAR THE LARGEST RESPONSIBILITY FOR THE ADMINISTRATION

OF JUSTICE. THE BENCH AND THE BAR HAVE A COMMON PURPOSE --

AND A PRIME TARGET -- TO INSURE THAT JUSTICE IS DISPENSED

FAIRLY AND EVEN-HANDEDLY TO ALL OUR CITIZENS. THE TASK

OF JUDICIAL IMPROVEMENT IS FORMIDABLE AND -- IT IS

APPARENT TO ME -- REQUIRES THE DEDICATION OF ALL OF US

WHO ARE IN THE LEGAL BUSINESS. I AM ALSO SURE THAT JOINT

EFFORTS -- IN CONCERT -- BETWEEN THE BENCH AND THE BAR

TO IMPROVE OUR JUDICIAL SYSTEMS HOLD THE MAXIMUM

OPPORTUNITIES FOR SUCCESS.

FOR MANY YEARS, THE ORGANIZED BAR NEGLECTED ITS

SHARE OF THAT RESPONSIBILITY -- LEAVING THE ADMINISTRATION

-2-

OF JUSTICE SOLELY IN THE HANDS OF THE JUDICIARY. IT SEEMS

TO ME THAT THIS SITUATION HAS MATERIALLY CHANGED. TODAY,

THERE IS MORE ORGANIZED BAR ACTIVITY SEEKING JUDICIAL

IMPROVEMENT THAN AT ANY PREVIOUS TIME.

TODAY, THE ORGANIZED

BAR IS ATTACKING THE TASK OF IDENTIFYING AND MITIGATING ALL

OF THE MONUMENTAL PROBLEMS FACING OUR JUDICIAL SYSTEMS WITH

INCREASING INTENSITY.

THE AMERICAN BAR ASSOCIATION IN RECENT YEARS HAS SERVED --

AND I HOPE WILL CONTINUE TO SERVE -- AS A CATALYST IN MARSHALING

ALL SEGMENTS OF THE LEGAL COMMUNITY IN THESE NEW EFFORTS FOR

JUDICIAL IMPROVEMENT. THE ASSOCIATION, WITH OVER 173,000

MEMBERS, IS NOW THE LARGEST PROFESSIONAL GROUP IN THE WORLD.

THIS SIZE -- WHEN COUPLED WITH OUR DIVERGENT MEMBERSHIP --

-3-

AND WITH THE REPRESENTATIVE NATURE OF OUR POLICY-MAKING HOUSE

OF DELEGATES -- GUARANTEES THAT WHEN THE ASSOCIATION SPEAKS --

IT DOES SO AS THE NATIONAL VOICE OF THE LEGAL PROFESSION AND

THUS IT CAN AND DOES WEILD A POWERFUL FORCE FOR SOUND JUDICIAL

IMPROVEMENTS. THE ASSOCIATION -- WITH ASSISTANCE FROM GROUPS

SUCH AS YOURS -- FROM ALL ASPECTS OF THE JUSTICE SYSTEM --

MUST RECOGNIZE AND USE THOSE STRENGTHS TO SERVE OUR PUBLIC

AND IMPROVE THE DELIVERY OF JUSTICE. WHILE THE ASSOCIATION

HAS MADE MAGNIFICENT EFFORTS IN THE PAST -- IT HAS NOT YET

RESPONDED WITH THE MAGNITUDE NECESSARY TO MEET TODAY'S

CHALLENGES, IT IS A PRIME CONCERN OF MINE AS PRESIDENT THAT

THE ABA'S EFFORTS FOR JUDICIAL IMPROVEMENT BE ENHANCED AND

MAGNIFIED.

-4-

TO THAT END, I WILL, AS ITS PRESIDENT, CONTINUE TO SPUR

THE ASSOCIATION TOWARD MORE ACTIVITY IN JUDICIAL IMPROVEMENT.

IT SEEMS TO ME TOO THAT THE ORGANIZED BAR HAS THE PRIME

RESPONSIBILITY TO INSURE THAT OUR JUDICIAL SYSTEMS RECEIVE

THE NECESSARY RESOURCES -- LEGISLATIVE SUPPORT -- AND

LEGISLATIVE APPROPRIATIONS -- SO AS TO DISPENSE FAIR,

EFFICIENT, AND TIMELY JUSTICE.

THE MOST IMPORTANT SINGLE ELEMENT IN THE JUDICIAL

PROCESS IS THE JUDGE. IN LARGE MEASURE -- THE QUALITY OF

OUR JUSTICE DEPENDS ON THE QUALITY OF OUR JUDGES, A POOR

JUDGE CAN MAKE A SHAMBLES OF THE BEST JUDICIAL SYSTEM.

CONVERSELY, A GOOD JUDGE CAN MAKE EVEN A POOR SYSTEM FUNCTION

YET -- IN MANY INSTANCES -- JUDGES

AT LEAST ADEQUATELY,

-5-

ARE UNDERSTAFFED AND UNDERPAID -- MAKING SEATS ON THE BENCH

OFTEN UNATTRACTIVE AND BURDENSOME. TO ATTRACT OUR FINEST

LEGAL MINDS TO THE BENCH, IT SEEMS TO ME THAT JUDGES MUST

BE PAID AT LEAST THE NET COMPENSATION THAT THEY COULD

EXPECT IF THEY WERE IN THE PRIVATE PRACTICE OF LAW. JUDGES

MUST, IN ADDITION, BE PROVIDED WITH MORE ADEQUATE STAFF

AND FACILITIES -- SUCH AS LAW CLERKS, RESEARCH ASSISTANTS,

SECRETARIES, OTHER COURT SUPPORT PERSONNEL, AND MODERN

OFFICE EQUIPMENT. IT IS QUITE APPARENT TO ME THAT IF OUR

JUSTICE SYSTEM IS TO PROPERLY FUNCTION, SOCIETY MUST BE

WILLING TO PAY FOR THE BEST, AND AS OF NOW, SOCIETY IS NOT

YET WILLING TO PAY THAT PRICE.

THE AMERICAN BAR ASSOCIATION --

AT THE NATIONAL LEVEL -- AND THE STATE AND LOCAL BAR

-6-

ASSOCIATIONS AT THE STATE AND LOCAL LEVELS, MUST MAKE AN

ALL-OUT EFFORT TO LOBBY BEFORE THE FEDERAL AND STATE

GOVERNMENTS FOR FUNDING AND LEGISLATION TO THUS ENHANCE

JUDICIAL POSITIONS AND IMPROVE THE JUDICIAL APPARATUS.

THE ORGANIZED BAR ALSO HAS AN OBLIGATION TO DEFEND --

BECAUSE OF JUDICIAL DECISIONS OR ACTIVITIES -- JUDGES WHO

ARE SUBJECTED TO UNWARRANTED OR UNFOUNDED PERSONAL ATTACKS.

THE CODE OF PROFESSIONAL RESPONSIBILITY MANDATES THAT THE

BAR COME TO THE AID OF JUDGES UNJUSTLY ATTACKED. IT SEEMS

TO ME THAT THE ORGANIZED BAR HAS BEEN REMISS IN LIVING UP

TO THIS RESPONSIBILITY.

I HAVE PROPOSED TO THE AMERICAN BAR ASSOCIATION THAT

A GROUP BE ORGANIZED TO IMMEDIATELY RESPOND TO UNFOUNDED

-7-

CITIZEN COMPLAINTS AND UNJUSTIFIED OR ERRONEOUS MEDIA

CRITICISM OF JUDGES WHOSE JURISDICTION COVERS MORE THAN

ONE STATE. IT IS MY GOAL THAT THIS GROUP -- IF APPROVED

BY THE ABA HOUSE OF DELEGATES -- SOON WILL GAIN PUBLIC RESPECT

AS A BALANCED AND FAIR JUDICIAL DEFENSE TEAM, I HAVE URGED

STATE AND LOCAL BAR ASSOCIATIONS TO FORM GROUPS OF A SIMILAR

NATURE TO PROVIDE THE SAME SERVICE ON BEHALF OF JUDGES WHOSE

JURISDICTION LIES WHOLLY WITHIN A SINGLE STATE,

THE BAR HAS

TO ACT -- SINCE THE JUDGE UNDER ATTACK IS PROSCRIBED FROM

MAKING A RESPONSE,

I ALSO WHOLEHEARTEDLY SUPPORT EFFORTS TO ESTABLISH

PERIODIC MEDIA EDUCATIONAL SEMINARS CONDUCTED LOCALLY -- SO

AS TO ASSIST THE NEWS MEDIA IN REPORTING JUDICIAL AND LEGAL

-8-

NEWS. I HOPE TO SEE EXPANDED EFFORTS TO INCLUDE LAW NEWS-

REPORTING COURSES IN JOURNALISM SCHOOLS,

THE NEWS MEDIA

HAS BEEN AND IS ONE OF THE STAUNCHEST AND STRONGEST DEFENDERS

OF OUR WAY OF LIFE UNDER LAW, BUT I BELIEVE -- I AM CONVINCED -

THAT THE BAR HAS AN UNMET OBLIGATION TO ASSIST THE PRESS IN

KEEPING OUR SOCIETY INFORMED OF THE WORKING OF OUR JUSTICE

SYSTEM,

IT IS ONLY WITHIN RECENT YEARS THAT IT HAS BEEN

FREELY ACKNOWLEDGED THAT CONTINUED SUPERIOR JUDICIAL

PERFORMANCE DEPENDS ON PARTICIPATION BY JUDGES IN

CONTINUING EDUCATIONAL PROGRAMS.

THE AMERICAN BAR

ASSOCIATION HAS DONE EXTENSIVE WORK IN ESTABLISHING

AND SUPPORTING EDUCATIONAL PROGRAMS AND CONFERENCES

-9-

FOR JUDGES.

THE NATIONAL COLLEGE OF THE STATE JUDICIARY IS THE

OUTSTANDING EXAMPLE OF SUCH AN EDUCATIONAL PROGRAM WHICH

HAS RESOUNDED TO THE BENEFIT OF THE JUDICIARY IN ALL STATES.

THE NATIONAL COLLEGE, NOW IN ITS TENTH YEAR, REPRESENTS AN

AMBITIOUS TASK -- TO IMPROVE THE ADMINISTRATION OF JUSTICE

IN STATE COURTS BY DESIGNING AND CONDUCTING CONTINUING

EDUCATION PROGRAMS FOR ALL STATE COURT JUDGES -- SPECIAL,

TRIAL AND APPELLATE.

THE COLLEGE IS A MONUMENTAL

ACCOMPLISHMENT AND WILL I AM SURE -- SIGNIFICANTLY

CONTRIBUTE TO IMPROVING THE ADMINISTRATION OF JUSTICE,

BY FAR THE GREATEST MAJORITY OF AMERICAN CITIZENS

WHO COME INTO CONTACT WITH THE JUDICIAL SYSTEM DO SO IN

-10-

COURTS OF SPECIAL JURISDICTION.

THEIR IMPRESSIONS OF

OUR JUSTICE SYSTEMS -- FOR GOOD OR ILL -- ARE -- IN LARGE

MEASURE -- DETERMINED BY THEIR EXPERIENCES IN THESE

COURTS, YET -- THE WORK OF SPECIAL JURISDICTION COURTS

HAS BEEN ONE OF THE MOST NEGLECTED AREAS OF JUDICIAL

ADMINISTRATION.

To HELP RECTIFY THIS SITUATION, A SPECIAL COURTS

DIVISION OF THE NATIONAL COLLEGE WAS ESTABLISHED IN 1971

TO CONDUCT RESIDENT COURSES FOR THE MORE THAN 20,000

JUDGES IN THIS COUNTRY OF THESE SPECIAL JURISDICTION

COURTS. I AM SATISFIED THAT THE SPECIAL COURTS DIVISION

OF THE COLLEGE HAS AN IMPRESSIVE AND COMPREHENSIVE

CURRICULUM, IF YOU HAVE NOT YET ATTENDED THE COLLEGE, I

-11-

URGE ALL OF YOU TO FAMILIARIZE YOURSELVES WITH THE COURSE

OFFERINGS.

IN ADDITION TO SPONSORING THE ESTABLISHMENT OF THE

NATIONAL COLLEGE AND ITS SPECIAL COURTS DIVISION, THE

AMERICAN BAR ASSOCIATION QUITE RECENTLY TOOK A DIRECT

STEP TO MORE HEAVILY INVOLVE SPECIAL COURT JUDGES IN

THE WORK OF THE ASSOCIATION BY ESTABLISHING THE NATIONAL

CONFERENCE OF SPECIAL COURT JUDGES. THIS CONFERENCE,

FUNCTIONING THROUGH THE ABA DIVISION OF JUDICIAL

ADMINISTRATION, HAS AS ITS GOAL TO INSURE A HIGH QUALITY

NATIONAL EDUCATIONAL EFFORT FOR SPECIAL COURT JUDGES AND

TO MAKE OTHER LEVELS OF THE JUDICIARY -- GENERAL TRIAL

AND APPELLATE -- AWARE OF THE PARTICULAR FUNCTIONS AND

-12-

NEEDS OF THESE SPECIAL JURISDICTION COURTS.

THE CONFERENCE,

OF COURSE, WORKS CLOSELY WITH THE SPECIAL COURTS DIVISION

OF THE NATIONAL COLLEGE IN PLANNING AND CONDUCTING ITS

PROGRAMS.

THE AMERICAN BAR ASSOCIATION WITHIN ITS JUDICIAL

ADMINISTRATION DIVISION NOW HAS A MEMBERSHIP CATEGORY

FOR NON-LAWYER JUDGES. NON-LAWYER JUDGES CAN NOW BECOME

JUDICIAL ASSOCIATES OF THE ABA AND ITS JUDICIAL ADMINISTRATION

DIVISION AND THUS ACTIVE PARTICIPANTS IN BOTH THE ABA AND

THE NATIONAL CONFERENCE.

THIS CONFERENCE THUS OFFERS ALL

JUDGES THE OPPORTUNITY TO BENEFIT FROM JOINT EFFORTS TO

IMPROVE THEIR COURTS. THE CONFERENCE HAS A SEAT IN THE

ASSOCIATION'S HOUSE OF DELEGATES, AND I AM QUITE CONFIDENT

-13-

THAT SPECIAL COURT JUDGES WILL HENCEFORTH HAVE A STRONG AND

EFFECTIVE VOICE IN ASSOCIATION ACTIVITIES.

THE NATIONAL CONFERENCE OF SPECIAL COURT JUDGES IS

GROWING AND DYNAMIC, WITH A CURRENT MEMBERSHIP OF OVER

1,000. THE CURRENT CHAIRMAN OF THE CONFERENCE IS JUDGE

PHILIP M. SAETA OF THE Los ANGELES MUNICIPAL COURT. IT

SEEMS TO ME THAT EACH OF YOU SHOULD CONSIDER JOINING THE

CONFERENCE AND PARTICIPATING IN ITS ACTIVITIES,

THE

CONFERENCE IS NOW ASSISTING THE AMERICAN BAR ASSOCIATION

COMMISSION DEVELOPING STANDARDS FOR JUDICIAL ADMINISTRATION.

THESE STANDARDS WILL SPECIFY GUIDELINES FOR THE IMPROVEMENT

OF ADMINISTRATIVE PROCEDURES IN ALL COURTS -- PRIMARILY --

WITH A VIEW TO THEIR ADOPTION BY STATE COURTS,

THE STANDARDS

WILL CONSIST OF RECOMMENDATIONS WHICH -- WHEN IMPLEMENTED --

WILL MODERNIZE AND IMPROVE COURT ADMINISTRATIVE PROCEDURES

AND ORGANIZATION1 So THAT THE VIEWS AND INTERESTS OF SPECIAL

COURT JUDGES WERE FULLY REPRESENTED IN THE DEVELOPMENT OF

THESE STANDARDS, I HAVE APPOINTED JUDGE ROBERT H. WAHL, WHO

IS BOTH A GOVERNOR OF THIS GROUP AND A MEMBER OF THE EXECUTIVE

COMMITTEE OF THE NATIONAL CONFERENCE OF SPECIAL COURT JUDGES,

TO THAT COMMISSION. IF YOU ARE INTERESTED IN ITS WORK

PRODUCT, I SUGGEST YOU GIVE YOUR IDEAS TO HIM.

THE FIRST REPORT OF THIS COMMISSION IN THE FORM OF A

TENTATIVE DRAFT OF STANDARDS RELATING TO THE ORGANIZATION

OF COURTS HAS BEEN PUBLISHED AND CIRCULATED TO MEMBERS OF

THE JUDICIARY AND OTHERS IN THE LEGAL PROFESSION FOR COMMENTS,

-15-

SUGGESTIONS, AND CRITICISM.

TOPICS COVERED IN THIS DRAFT

OF THE STANDARDS INCLUDE: A UNIFIED COURT SYSTEM -- SELECTION

AND TENURE OF JUDGES -- RULE-MAKING AND ADMINISTRATIVE

AUTHORITY -- COURT ADMINISTRATION SERVICES -- COURT BUDGETING -

AND COURT RECORDS SYSTEMS, IF YOU HAVE NOT ALREADY DONE SO,

I REQUEST THAT AS MANY OF YOU AS POSSIBLE REVIEW THIS DRAFT,

SINCE IT DOES RECOMMEND SIGNIFICANT CHANGES IN COURT

PROCEDURES AND STRUCTURES. COPIES MAY BE OBTAINED FROM

THE JUDICIAL SERVICES DIVISION OF THE ASSOCIATION AT THE

AMERICAN BAR CENTER IN CHICAGO. YOU SHOULD KNOW, TOO THAT

THE AMERICAN BAR ASSOCIATION, IN A JOINT EFFORT WITH THE

INSTITUTE OF JUDICIAL ADMINISTRATION, IS DEVELOPING A SET

OF STANDARDS FOR JUVENILE JUSTICE, WHICH WILL -- I BELIEVE --

-16-

ONCE COMPLETED MATERIALLY IMPROVE THE FUNCTIONING OF OUR

JUVENILE JUSTICE SYSTEM,

THE EXISTING AND ANTICIPATED PROGRAMS THAT I HAVE

OUTLINED -- COMMENDABLE AS THEY MAY BE -- ARE, OF COURSE,

NOT ENOUGH. LAWYERS AND JUDGES MUST WORK TOGETHER -- THROUGH

THE AMERICAN BAR ASSOCIATION, THROUGH YOUR OWN ASSOCIATION,

AND THROUGH BODIES SUCH AS THE AMERICAN ACADEMY OF JUDICIAL

EDUCATION, THE INSTITUTE FOR COURT MANAGEMENT, AND THE

NATIONAL CENTER FOR STATE COURTS -- TO ELIMINATE ALL OF THE

INEQUITIES AND INEFFICIENCIES IN OUR JUSTICE SYSTEM -- THOSE

I HAVE OUTLINED AND THOSE THAT I HAVE NOT. MANY MATTERS

CALL FOR ATTENTION. I PERSONALLY FEEL THAT WE MUST -- AS

SOON AS REASONABLY POSSIBLE -- ELIMINATE PLEA BARGAINING

-17-

AND ITS ATTENDANT EVILS FROM OUR COURTS. IN THE INTERIM,

WE MUST BE VERY CAUTIOUS IN THE ADMINISTRATION OF THAT

EXPEDIENT, WE SHOULD ALSO THOROUGHLY EXAMINE THE GRAND

JURY SYSTEM WITH AN EYE EITHER TO IMPROVING IT OR EVEN TO

THE DRASTIC STEP OF ABOLISHING IT.

THE SENTENCING PROCESS

SHOULD BE EXAMINED -- ANALYZED, RE-EXAMINED, AND RE-ANALYZED -

ON A CONTINUING BASIS, MAYBE JUDGES SHOULD ONLY PLACE

MAXIMUM SENTENCE LIMITATIONS ON CONVICTED PERSONS WITH AN

INDEPENDENT BODY -- POSSIBLY OF AN INTERDISCIPLINARY NATURE --

SETTING THE FINAL SENTENCE.

THE POSSIBILITIES I HAVE MENTIONED, OF COURSE, REQUIRE

TIME AND EFFORT ON THE PART OF ALL CONCERNED, MANY SIMILAR

PROPOSALS -- PERHAPS OF EVEN GREATER SIGNIFICANCE -- COULD

-18-

AND SHOULD BE MADE, AS THE TEMPO OF WORLD CHANGE INTENSIFIES,

THE DEMANDS TO UPDATE AND IMPROVE OUR JUSTICE SYSTEM WILL

CONTINUE UNABATEDLY. IT IS, THEREFORE, OF PRIME IMPORTANCE

THAT ALL SEGMENTS OF THE LEGAL COMMUNITY WORK HAND-IN-HAND

TO ASSURE THAT OUR JUSTICE SYSTEM MEETS THE NEEDS OF OUR

CHANGING SOCIETY.

I PLEDGE TO HELP.

(WATERGATE)

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 87

VOLUME VI

ADDRESS OF:

CHESTERFIELD SMITH

PRESIDENT

AMERICAN BAR ASSOCIATION

NATIONAL LEGAL AID AND DEFENDER

ASSOCIATION

CORONADO BEACH HOTEL

CORONADO BEACH, CALIFORNIA

BEFORE:

DATE OF DELIVERY:

TITLE:

THURSDAY, OCTOBER 25, 1973

REMARKS OF CHESTERFIELD SMITH

RELATING TO RECENT GOVERNMENTAL

ACTIONS CONCERNING THE SPECIAL

PROSECUTOR IN THE WATERGATE AFFAIR

TWENTY MINUTES

TIME:

DURING MY PROFESSIONAL LIFE IT ALWAYS HAS BEEN EVIDENT TO

ME THAT LAWYERS BEAR A SPECIAL RESPONSIBILITY IN OUR SOCIETY TOWARD

THE PRESERVATION OF A FREE AND DEMOCRATIC GOVERNMENT. THAT SPECIAL

RESPONSIBILITY LOOMS BIGGER AND BIGGER WHEN MEN TEMPORARILY IN

GOVERNMENTAL POWER ATTACK THE RULE OF LAW AND ASSERT THAT

THEY OR THEIR OFFICE ARE LARGER THAN LAW. AS OFFICERS OF THE COURTS -

AND THUS GUARDIANS OF THE LAW -- LAWYERS ARE PECULIARLY WELL

QUALIFIED TO PROTECT THE RULE OF LAW, LAWYERS IN FACT ARE THE

PRIMARY ONES WHO SHOULD ABOVE ALL OTHERS JEALOUSLY DEFEND AND PROMOTE

THE RULE OF LAW AGAINST ASSAULT, AS A LAWYER IT IS FOR THAT REASON

THAT I SUGGEST THAT THE RECENT ACTION OF PRESIDENT NIXON RESULTING

IN THE TERMINATION FROM GOVERNMENT SERVICE OF FORMER ATTORNEY

GENERAL RICHARDSON, FORMER DEPUTY ATTORNEY GENERAL RUCKLESHAUS AND

- 2 -

FORMER SPECIAL PROSECUTOR COX SHOULD BE OF GRAVE CONCERN TO EVERY

CITIZEN OF THIS STURDY LAND, THOSE ACTIONS -- OR SO I AM CONVINCED -

HAVE PLACED THE RULE OF LAW IN SEVERE JEOPARDY. DARK DARK -

CLOUDS HAVE BEEN CAST UPON OUR ABILITY TO FUNCTION AS A SOCIETY

RULED BY LAW AND NOT AS A SOCIETY RULED BY A MAN,

THE TIME-TESTED

PROCESSES OF ADMINISTERING THAT RULE OF LAW IN ADVERSARY CRIMINAL

PROCEEDINGS -- AS WE HAVE KNOWN DEVELOPED AND PERFECTED THEM

IN THIS COUNTRY -- ARE AT STAKE IN THIS CONTROVERSY.

As PRESIDENT OF THE AMERICAN BAR ASSOCIATION -- AND AS A

SPOKESMAN FOR THOSE WHO -- AS OFFICERS OF THE COURT -- ARE THUS

UNIQUELY ENTRUSTED WITH THE PRESERVATION OF THE RULE OF LAW --

I HAVE ASKED -- AND I SHALL CONTINUE TO ASK -- THAT APPROPRIATE

ACTION BE TAKEN PROMPTLY BY ALL OF OUR NATION'S DULY CONSTITUTED

- 3

AUTHORITY TO REPEAL THE DIRECT AND OUTRIGHT ATTACK ON OUR SYSTEM

OF JUSTICE WHICH I BELIEVE PRESIDENT NIXON MADE WHEN HE -- BY

EDICT -- EFFECTIVELY STOPPED AN INVESTIGATION BY SPECIAL PROSECUTOR

COX INTO EVIDENCE STORED IN THE WHITE HOUSE OF POSSIBLE CRIMINAL

ACTS BY PEOPLE WHO WORKED OR WHO HAD WORKED AT THE WHITE HOUSE OR

WHO HAD OTHERWISE BEEN A PART OF THE NIXON ADMINISTRATION.

I INTEND TO URGE THE AMERICAN BAR ASSOCIATION -- THROUGH

ITS BOARD OF GOVERNORS AND THEN ITS HOUSE OF DELEGATES -- TO TAKE

ACTION TO PRESENT THE VIEWS OF THE ASSOCIATION ON THIS ISSUE TO

THE CONGRESS AND TO THE AMERICAN PEOPLE. AS THE FIRST STEP IN

THAT EFFORT, I HAVE CALLED AN EMERGENCY MEETING OF THE ASSOCIATION'S

BOARD OF GOVERNORS TO CONVENE IN CHICAGO ON NEXT SATURDAY TO CONSIDER

APPROPRIATE ACTIONS. I WILL RECOMMEND THAT THE BOARD CALL AN

EMERGENCY MEETING OF THE ABA HOUSE OF DELEGATES.

- 4

FRANKLY, I AM VERY PROUD THAT THE AMERICAN BAR ASSOCIATION

THROUGHOUT ITS HISTORY HAS MOVED WITH DELIBERATE SPEED AND ENERGY

TO PROTECT THE RULE OF LAW WHENEVER THAT RULE HAS BEEN PLACED IN

JEOPARDY, I RECALL THE VIGOROUS ACTION TAKEN BY THE ASSOCIATION IN

1937 WHEN PRESIDENT FRANKLIN ROOSEVELT, PROPOSED THAT THE COMPOSITION

AND FUNCTIONING OF THE FEDERAL COURTS -- WITH PARTICULAR EMPHASIS

ON THE SUPREME COURT -- BE SIGNIFICANTLY ALTERED BY LEGISLATIVE

ACTION TO COMPORT WITH THE POLITICAL NECESSITIES AS HE PERSONALLY

SAW THEM, To WHAT I BELIEVE IS ITS EVERLASTING CREDIT, THE AMERICAN

BAR ASSOCIATION THERE WILLINGLY AND FORCEFULLY ASSUMED THE LEADERSHIP

ROLE OF PRESERVING THE INDEPENDENCE OF THE JUDICIARY -- OF PRESERVING

THE SEPARATION OF POWERS -- AND THUS PRESERVING THE RULE OF LAW --

BY OPPOSING THAT PROPOSED ENCROACHMENT BY THE PRESIDENT OF THE

5 -

UNITED STATES. THE RECORDS OF THE ASSOCIATION SHOW THAT IT RALLIED

THE SUPPORT OF ALL LAWYERS IN THE COUNTRY -- WHETHER ASSOCIATION

MEMBERS OR NOT -- IN OPPOSITION TO THE PRESIDENT'S PLAN TO PACK

THE SUPREME COURT WITH NEW AND ADDITIONAL MEN WHO WOULD DO HIS

BIDDING OR WHO WOULD RULE HIS WAY, I BELIEVE THAT IT WAS IN LARGE

MEASURE DUE TO THE NON-PARTISAN OPPOSITION OF THE AMERICAN BAR

ASSOCIATION THAT THAT PROPOSAL OF PRESIDENT ROOSEVELT WAS DEFEATED1.

I RECITE THIS HISTORY BECAUSE IT SEEMS TO ME THAT ONCE

AGAIN THE AMERICAN BAR ASSOCIATION -- AND THE LEGAL COMMUNITY -

IN ACCORD WITH PROUD TRADITION OF THE LEGAL PROFESSION -- MUST RALLY

TO THE DEFENSE OF THE COURTS AND THE JUDICIAL PROCESS -- AND THAT

SUCH DEFENSE ONCE AGAIN, IF IT IS TO BE SUCCESSFUL, MUST BE CONDUCTED

IN A NON-PARTISAN -- NON-BIASED MANNER,

- 6

THE AMERICAN BAR ASSOCIATION IS NO NEWCOMER TO THE WATERGATE

ARENA, LAST SPRING, PRESIDENT ROBERT MESERVE, ON BEHALF OF THE

ASSOCIATION, CALLED FOR THE APPOINTMENT OF AN INDEPENDENT PROSECUTOR

WITH PLENARY RESPONSIBILITY FOR THE INVESTIGATION AND PROSECUTION OF

POSSIBLE CRIMINAL MATTERS SURROUNDING THE 1972 PRESIDENTIAL CAMPAIGN

AND RELATED ACTS OR DIRTY TRICKS WHICH ALL OF US HAVE NOW COMBINED

UNDER THE SIMPLE TITLE OF "WATERGATE". THAT POSITION OF THE ASSOCIATION

WAS BASED UPON THE ALMOST UNIVERSALLY ACCEPTED PROPOSITION THAT

ONLY A PROSECUTOR -- INDEPENDENT AND FREE OF THE DICTATION AND

CONTROL OF THOSE WHOM HE WAS TO INVESTIGATE -- COULD SATISFACTORILY

RESOLVE IN THE MINDS OF THE PEOPLE THE LEGALITY OR ILLEGALITY

OF MATTERS WHICH HE WAS TO INVESTIGATE. THE ASSOCIATION, BY TAKING

THAT POSITION, WAS NOT PICKING UP A NEW OR UNTRIED THEORY --

INSTEAD IT WAS RELYING UPON ITS OWN WIDELY ACCEPTED AND UNIVERSALLY

- 7

HAILED STANDARDS FOR CRIMINAL JUSTICE -- AND -- PARTICULARLY --

ON THE STANDARDS RELATING TO THE PROSECUTORIAL FUNCTIONS

THAT

STANDARD CLEARLY PROVIDES THAT PROSECUTING OFFICERS SHOULD HAVE NO

CONFLICT OF INTEREST, OR THE APPEARANCE OF A CONFLICT OF INTEREST.

THUS, UNDER THAT STANDARD IT CLEARLY WAS AND IS IMPROPER FOR AN

INVESTIGATION OF THE EXECUTIVE BRANCH OF THE GOVERNMENT -- OF THE

OFFICE OF THE PRESIDENT -- OR OF THE PRESIDENT HIMSELF OR OF HIS

CLOSE ASSOCIATES -- TO BE CONDUCTED BY A PROSECUTOR WHO IS UNDER THE

CONTROL AND DIRECTION OF EITHER THE PRESIDENT HIMSELF OR OF SOME

OTHER PERSON WHO HIMSELF IS UNDER THE DIRECTION AND CONTROL OF THE

PRESIDENT. IT WAS THE DESIRE AND GOAL OF THE ASSOCIATION AT THAT

TIME THAT A MAN COMPLETELY INDEPENDENT OF PARTISAN INFLUENCES --

OR THE APPEARANCE OF PARTISAN INFLUENCES -- BE SELECTED TO DISCHARGE

THE RESPONSIBILITIES OF CLEARING UP THE MESS OF WATERGATE FOR THE

- 8 -

AMERICAN PEOPLE. SADLY, THAT DESIRE AND THAT GOAL HAVE NOT MATERIALIZED.

BASED UPON ASSURANCES MADE BY ELLIOT RICHARDSON TO THE

SENATE JUDICIARY COMMITTEE DURING HEARINGS ON HIS CONFIRMATION

AS ATTORNEY GENERAL, TO WHICH -- BY HIS SILENCE -- I SUBMIT THAT

PRESIDENT NIXON ACQUIESED, THE AMERICAN BAR ASSOCIATION WAS HOPEFUL

THAT WHEN ARCHIBALD COX WAS APPOINTED AS THE SPECIAL PROSECUTOR

HE WOULD BE ALLOWED TO PURSUE JUSTICE IN LIGHT OF THE PRINCIPLES

THAT I HAVE MENTIONED. PRESIDENT NIXON HIMSELF STATED THAT THE

ATTORNEY GENERAL HAD FULL AUTHORITY TO APPOINT AN ABSOLUTELY

INDEPENDENT PROSECUTOR WHO COULD FOLLOW CRIMINAL LEADS WHEREVER

THEY WENT, AND -- EVEN THOUGH WE KNEW THEN THAT UNDER THE LAW

EITHER THE PRESIDENT OR THE ATTORNEY GENERAL COULD LEGALLY RENIG --

STILL WE -- AS ALL OTHER AMERICANS -- WANTED SO VERY MUCH TO

9 -

BELIEVE THAT JUSTICE, UNHAMPERED BY THOSE UNDER INVESTIGATION,

WOULD PREVAIL THAT WE ACCEPTED THE APPOINTMENT OF MR, COX WITH

HIGH HOPE.

BUT IT WAS NOT TO BE. OUR ADVERSARY SYSTEM OF CRIMINAL JUSTICE -

LONG TESTED IN THIS AND OTHER ENGLISH-SPEAKING COUNTRIES -- REQUIRES

THAT CONTENDING ADVERSARIES BEFORE AN IMPARTIAL JUDGE BE EQUAL IF

IT IS PROPERLY TO FUNCTION. EACH OF THE ADVERSARY PARTIES MUST

BE FREE TO PRESENT TO THAT IMPARTIAL JUDGE FOR DETERMINATION

HIS CONTENTIONS -- HIS CASE, THE JUDGE HIMSELF IS NOT AN ACTOR,

AND IF HE IS TO DO HIS JOB WELL, THE TWO CONTENDING PARTIES MUST

PRESENT TO HIM THE ISSUES FOR DETERMINATION. UNDER SUCH A SYSTEM,

IT IS BOTH IMPERATIVE AND OBVIOUS THAT THE ADVERSARIES MUST BE

FREE TO ACT BEFORE THE COURT WITHOUT INFLUENCE OR CONTROL BY THEIR

OPPONENT. IN THIS WAY WE HISTORICALLY HAVE -- WITH SUCCESS --

- 10 -

TESTED THE TRUTH AND VERITY OF TESTIMONY, OF DOCUMENTARY EVIDENCE,

OF OPPOSING CONTENTIONS.

IN AN ADVERSARY WAY, WE HAVE PERMITTED

EACH OPPONENT THE RIGHT TO PICK AT, EXAMINE AND CROSS-EXAMINE --

MATERIAL SUBMITTED TO THE COURT BY THE OPPOSING PARTY, --

CERTAINLY WE HAVE ALLOWED EACH PARTY THE FULL RIGHT TO DETERMINE

WHAT HE WILL PROFFER TO THE COURT TO SUBSTANTIATE HIS POSITION.

IT HAS NEVER BEEN SUGGESTED TO MY KNOWLEDGE ANYWHERE THAT THE

TRUTH OF OPPOSING CONTENTIONS COULD BE FAIRLY AND EQUITABLY

ASCERTAINED IF ONE OF THE OPPOSING PARTIES BEFORE THE COURT COULD

DETERMINE WHAT EVIDENCE AND WHAT CONTENTIONS HIS OPPONENT COULD

PRESENT TO THE JUDGE OR JURY FOR CONSIDERATION.

BUT IN THIS CASE, THERE IS SOMETHING NEW. PRESIDENT NIXON

HAS INSTRUCTED THE SPECIAL PROSECUTOR -- WHO FOR SEVERAL MONTHS HAS

- II -

BEEN SEEKING EVIDENCE UNDER THE CONTROL OF THE WHITE HOUSE IN AN

ADVERSARY COURT PROCEEDING -- TO CEASE AND DESIST -- HAS ORDERED

HIM NOT TO EVEN SECURE A RULING FOR THE DISTRICT COURT OR FROM

THE SUPREME COURT OF THE UNITED STATES OR FROM ANYWHERE AS TO

WHETHER SUCH EVIDENCE OF POSSIBLE CRIMINAL MISCONDUCT IS LEGALLY

OBTAINABLE -- THE SPECIAL PROSECUTOR WAS FORBIDDEN THE RIGHT TO

ASK THE COURT WHERE HE HAD BEEN LITIGATING WITH THE PRESIDENT

WHETHER IT. IS EITHER LEGAL OR ILLEGAL FOR THE PRESIDENT TO WITHHOLD

FROM THE GRAND JURY MATERIALS IN HIS POSSESSION WHICH MIGHT PROVE

OR DISPROVE EITHER THE GUILT OR INNOCENCE OF THOSE BEING INVESTIGATED.

THE PRESIDENT -- BY MANDATING INSTRUCTIONS TO THE PROSECUTOR

WHO WAS HIS ADVERSARY IN A PENDING COURT PROCEEDING -- INSTITUTED

AN INTOLERABLE ASSAULT UPON THE MOST RUDIMENTARY AND BASIC PRINCIPLES

- 12

OF JUSTICE. EVERY AMERICAN KNOWS THAT THE COURTS ARE OUR FIRST

LINE OF DEFENSE AGAINST GOVERNMENTAL TYRANNY AND ARBITRARY POWER.

I BELIEVE THAT THE RESULTING OUTCRY OF PEOPLE FROM THROUGHOUT OUR

NATION WAS A RECOGNITION THAT THE ABANDONMENT -- BY PRESIDENTIAL

FIAT -- OF THOSE TIME-TESTED PROCEDURES WHICH TRADITIONALLY HAVE

INSURED THE EQUITABLE RESOLUTION OF DISPUTES BETWEEN MAN AND HIS

GOVERNMENT, CONSTITUTES A CLEAR AND PRESENT DANGER -- OF COMPELLING

SIGNIFICANCE -- TO THE BASIC FABRIC OF OUR NATIONAL WAY OF LIFE.

THE SUBSTITUTION BY THE PRESIDENT OF HIS OWN PROSECUTOR -- A MAN

WHOLLY DEPENDENT ON THE CONTINUED SUPPORT OF AN ACTING ATTORNEY

GENERAL WHO IS WHOLLY DEPENDNET ON THE CONTINUED SUPPORT OF THE

PRESIDENT -- REPRESENTS AN ASSAULT OF WHOLLY UNPRECEDENTED DIMENSION

ON THE VERY HEART OF THE ADMINISTRATION OF JUSTICE AND A DIRECT

- 13 -

ABORTION OF THE ESTABLISHED PROCESSES OF JUSTICE. I REITERATE MY

PERSONAL OPINION THAT THE GRAVITY OF THE SITUATION DEMANDS RESOLUTE

ACTION ON THE PART OF THE COURTS -- AND IF NECESSARY THE CONGRESS,

WHILE I DO EXPRESS MY GRAVE CONCERN OVER-THESE ACTIONS BY THE

PRESIDENT, I SINCERELY BELIEVE THAT THE JUDICIAL AND LEGISLATIVE

FORCES OF THIS.NATION WILL ACT SWIFTLY AND DECISIVELY TO CHALLENGE -

REPEAL -- AND CORRECT THIS DAMAGING ENCROACHMENT BY PRESIDENT

NIXON UPON OUR SYSTEM OF JUSTICE.

I BELIEVE THAT ONLY THROUGH SUCH ACTION CAN THE BASIC LIBERTY

OF OUR CITIZENS BE PRESERVED, WHILE I TOO FULLY UNDERSTAND THAT

THE SECURITY OF OUR COUNTRY SHOULD ALWAYS BE UPPERMOST IN OUR

CONCERNS, AS A LAWYER, AS AN AMERICAN, AND AS AN OFFICER OF ITS

COURTS, I AM CONVINCED THAT THERE CAN BE NO MENACE FROM WITHOUT

OUR BORDERS MORE DEVASTATING TO INDIVIDUAL RIGHTS AND FREEDOMS AND

- 14 -

MORE DAMAGING TO OUR IMAGE IN THE EYES OF THOSE OF DIFFERENT NATIONS

THAN A DEFIANT FLOUTING OF LAWS AND COURTS BY OUR PRESIDENT,

KNOWING

THAT, I CONTINUE TO HOPE THAT PRESIDENT NIXON, WHOSE ACTIONS IN ALL

RESPECTS ARE SO VERY IMPORTANT TO EVERY AMERICAN -- WILL -- UPON

CONSIDERATION OF THE REACTION OF THE PEOPLE OF THIS NATION --

CHANGE HIS COURSE -- JUST AS HE HAS SINCE THAT TIME -- AFTER STATING

THAT HE NEVER WOULD -- QUITE PROPERLY CHANGED HIS POSITION ON

THE SUBMISSION OF THE PRESIDENTIAL TAPES TO JUDGE SIRICA.

REGARDLESS OF PRESIDENTIAL ACTION -- OR INACTION -- I

BELIEVE THAT CONGRESS SHOULD, AS ITS FIRST PRIORITY, TAKE WHATEVER

MEASURES ARE AVAILABLE TO IT TO RE-ESTABLISH THE OFFICE OF THE

SPECIAL PROSECUTOR AND TO MAKE THE SPECIAL PROSECUTOR INDEPENDENT

OF THE DIRECTION AND CONTROL OF THOSE WHOM HE IS INVESTIGATING.

I CARE NOT WHETHER THE SPECIAL PROSECUTOR IS APPOINTED BY THE

- 15 -

CONGRESS OR APPOINTED BY THE DISTRICT COURT -- I CARE NOT WHETHER

HE IS ARCHIBALD COX OR SOME OTHER HIGHLY QUALIFIED LAWYER. I

CARE ONLY THAT THE SPECIAL PROSECUTOR NOT BE AN EMPLOYEE OF OR

UNDER THE CONTROL OF PRESIDENT RICHARD NIXON.

IN MY OPINION WE TRULY ARE PRESENTLY IN THE MIDST OF A

GOVERNMENTAL CRISIS UNPARALLELED IN OUR NATION'S HISTORY, BUT, OR

SO IT SEEMS TO ME, ONLY BECAUSE SUCH CRISIS HAS BEEN SO WILLED BY

THE PRESIDENT. THE EXECUTIVE LEGISLATIVE AND JUDICIAL BRANCHES

SHOULD EACH SHARE A COMMON CONCERN THAT JUSTICE BE DONE AND THAT

ALL AVAILABLE MATERIAL WHICH WILL HELP TO POINT OUT THE TRUTH

BE SUBMITTED TO THE JUDGE FOR A DETERMINATION OF ITS ADMISSABILITYs

ITS PROBATIVE VALUE, AND ITS VERITY.

IF THAT IS A TRUE PRINCIPLE,

IT IS NOT WORKING HERE, SINCE ONE OF OUR THREE GREAT DEPARTMENTS OF

- 16 -

GOVERNMENT -- THE EXECUTIVE -- IS WHOLLY AND COMPLETELY UNCOOPERATIVE

IN TURNING OVER AVAILABLE MATERIAL WHICH MIGHT HELP TO ESTABLISH

THE GUILT OR INNOCENCE OF EMPLOYEES OR FORMER EMPLOYEES OF THE

EXECUTIVE BRANCH.

GET SUCH EVIDENCE.

INSTEAD, IT FIRES A PROSECUTOR WHO TRIES TO

THE PRESIDENT IS NOT ABOVE THE LAW -- AND HE

CANNOT UNILATERALLY WITHHOLD FROM CONSIDERATION EXECUTIVE MATERIALS

WHICH MIGHT MATERIALLY AFFECT THE DECISION TO PROSECUTE OR NOT

TO PROSECUTE -- NOR CAN HE MANDATE THAT A PROSECUTOR NOT SEEK

SUCH MATERIAL FOR SUBMISSION TO A GRAND JURY. IT SEEMS TO ME

THAT THE DECISIONS MADE AND THAT THE RULES ESTABLISHED OUT OF THIS

GREAT CONTROVERSY WILL HAVE A PROFOUND AND LASTING EFFECT ON OUR

NATION'S FUTURE. AT STAKE ARE THE BASIC PRINCIPLES WHICH GIVE

STRENGTH AND VIABILITY TO OUR SOCIETY.

I SUBMIT THAT THE PEOPLE

- 17 -

OF THIS COUNTRY WILL NEVER BELIEVE THAT JUSTICE HAS BEEN DONE IN

"WATERGATE" UNTIL SUCH TIME AS A PROSECUTOR -- INDEPENDENT OF THE

WHITE HOUSE -- IS PERMITTED TO GO INTO ALL ASPECTS OF THE MATTER -

A PROSECUTOR APPOINTED BY SOMEONE OTHER THAN THOSE WHOM HE HAS

REASON TO BELIEVE ARE POSSIBLE PARTICIPANTS OR WHO MAY HAVE KNOWLEDGE

ABOUT POSSIBLE PARTICIPATNS WHICH THEY DO NOT WANT REVEALED, AT

THE SAME TIME, I WANT STRONGLY TO POINT OUT MY UNDEVIATING BELIEF

THAT IT IS.COMPLETELY PROPER FOR THOSE BEING INVESTIGATED TO SEEK --

THROUGH THE COURTS -- RECOURSE AS TO POSSIBLE OBJECTIONS THAT THEY

MIGHT HAVE TO THE CONDUCT OF THE SPECIAL PROSECUTOR.

IF THOSE WHO

ARE BEING INVESTIGATED FEEL THAT THE MATERIAL SOUGHT BY THE

PROSECUTOR -- OR THE TACTICS HE EMPLOYS -- ARE ILLEGAL -- THEY

PROPERLY SHOULD SUBMIT THEIR OBJECTIONS TO THE COURT FOR A

- 18 -

DETERMINATION AS TO WHETHER THE PROSECUTOR'S ACTS ARE LEGALLY PERMISSIBLE.

BUT OF COURSE THOSE WHO ARE BEING INVESTIGATED CANNOT ALONE MAKE

THAT DETERMINATION -- NO MAN CAN UNDER A GOVERNMENT OF LAWS --

IT MUST BE PRESENTED TO A JUDGE -- AND BE LEGALLY TESTED BY HIS

ADVERSARY.

SO BELIEVING THUS, I PLEDGE TO DO ALL WITHIN MY PERSONAL

POWER TO SEE THAT THE AMERICAN BAR ASSOCIATION -- IF REQUESTED --

ASSIST THE UNITED STATES DISTRICT COURTS AND ANY AND ALL OTHER

FEDERAL COURTS IN THE DISCHARGE OF ITS DUTIES AND RESPONSIBILITIES

IN THIS GOVERNMENTAL CRISIS. I SUGGEST THAT THE NATIONAL LEGAL

AID AND DEFENDER ASSOCIATION CONSIDER WHETHER IT TOO WILL JOIN IN

THIS EFFORT -- WHETHER IT TOO WILL CONDEMN THIS FRONTAL ATTACK ON

THE JUSTICE SYSTEM BY THE PRESIDENT.

- 19 -

IN THE PAST SEVERAL DAYS, I HAVE HAD OCCASION TO APPLAUD

THE ACTION OF THREE GREAT LAWYERS: ELLIOT RICHARDSON, WILLIAM

RUCKLESHAUS, AND ARCHIBALD COX -- EACH OF WHOM HAS -- IN A MOST

DRAMATIC AND NON-POLITICAL WAY -- DEMONSTRATED TO THE PEOPLE OF

THIS NATION THAT THERE ARE LAWYERS WHO .HONOR AND CHERISH LEGAL

TRADITIONS WHO WORK FOR THE FEDERAL GOVERNMENT -- THAT THEY --

LIKE LITERALLY THOUSANDS OF MORE LAWYERS WHO ALSO WORK DILIGENTLY

AND PROFESSIONALLY FOR THE FEDERAL GOVERNMENT -- PUT ETHICS AND

PROFESSIONAL HONOR ABOVE PUBLIC OFFICE. I AM QUITE PROUD OFHEACH

OF THEM.

BY THEIR ACTIONS -- BY THE ACTIONS OF THOUSANDS OF

INDIVIDUAL LAWYERS -- BY THE ACTIONS OF STATE AND LOCAL BAR

ASSOCIATIONS -- AND BY THE ACTIONS OF THE AMERICAN BAR ASSOCIATION,

I VERY MUCH WANT THE AMERICAN PEOPLE AGAIN TO FEEL ASSURED THAT

THOSE WHOSE PROFESSION IS THE LAW -- WE -- THE LAWYERS OF AMERICA -

- 20 -

ARE FIRMLY COMMITTED TO PRESERVING OUR SOCIETY -- UNDER LAW --

AND TO SAFEGUARDING OUR LIBERTIES -- UNDER LAW.

ADDRESS OF:

CHESTERFIELD SMITH

PRESIDENT

AMERICAN BAR ASSOCIATION

BEFORE:

NATIONAL LEGAL AID AND DEFENDER

ASSOCIATION

CORONADO BEACH HOTEL

CORONADO BEACH, CALIFORNIA

DATE OF DELIVERY:

TITLE:

THURSDAY, OCTOBER 25, 1973

REMARKS OF CHESTERFIELD SMITH

RELATING TO RECENT GOVERNMENTAL

ACTIONS CONCERNING THE SPECIAL

PROSECUTOR IN THE WATERGATE AFFAIR

TWENTY MINUTES

TIME:

DURING MY PROFESSIONAL LIFE IT ALWAYS HAS BEEN EVIDENT TO

ME THAT LAWYERS BEAR A SPECIAL RESPONSIBILITY IN OUR SOCIETY TOWARD

THE PRESERVATION OF A FREE AND DEMOCRATIC GOVERNMENT. THAT SPECIAL

RESPONSIBILITY LOOMS BIGGER AND BIGGER WHEN MEN TEMPORARILY IN

GOVERNMENTAL POWER ATTACK THE RULE OF LAW AND ASSERT THAT

THEY OR THEIR OFFICE ARE LARGER THAN LAW. As OFFICERS OF THE COURTS -

AND THUS GUARDIANS OF THE LAW -- LAWYERS ARE PECULIARLY WELL

QUALIFIED TO PROTECT THE RULE OF LAW. LAWYERS IN FACT ARE THE

PRIMARY ONES WHO SHOULD ABOVE ALL OTHERS JEALOUSLY DEFEND AND PROMOTE

THE RULE OF LAW AGAINST ASSAULT. AS A LAWYER IT IS FOR THAT REASON

THAT I SUGGEST THAT THE RECENT ACTION OF PRESIDENT NIXON RESULTING

IN THE TERMINATION FROM GOVERNMENT SERVICE OF FORMER ATTORNEY

GENERAL RICHARDSON, FORMER DEPUTY ATTORNEY GENERAL RUCKLESHAUS AND

- 2 -

FORMER SPECIAL PROSECUTOR COX SHOULD BE OF GRAVE CONCERN TO EVERY

CITIZEN OF THIS STURDY LAND. THOSE ACTIONS -- OR SO I AM CONVINCED --

HAVE PLACED THE RULE OF LAW IN SEVERE JEOPARDY. DARK DARK -

CLOUDS HAVE BEEN CAST UPON OUR ABILITY TO FUNCTION AS A SOCIETY

RULED BY LAW AND NOT AS A SOCIETY RULED BY A MAN. THE TIME-TESTED

PROCESSES OF ADMINISTERING THAT RULE OF LAW IN ADVERSARY CRIMINAL

PROCEEDINGS -- AS WE HAVE KNOWN DEVELOPED AND PERFECTED THEM

IN THIS COUNTRY -- ARE AT STAKE IN THIS CONTROVERSY.

As PRESIDENT OF THE AMERICAN BAR ASSOCIATION -- AND AS A

SPOKESMAN FOR THOSE WHO -- AS OFFICERS OF THE COURT -- ARE THUS

UNIQUELY ENTRUSTED WITH THE PRESERVATION OF THE RULE OF LAW --

I HAVE ASKED -- AND I SHALL CONTINUE TO ASK -- THAT APPROPRIATE

ACTION BE TAKEN PROMPTLY BY ALL OF OUR NATION'S DULY CONSTITUTED

- 3 -

AUTHORITY TO REPEAL THE DIRECT AND OUTRIGHT ATTACK ON OUR SYSTEM

OF JUSTICE WHICH I BELIEVE PRESIDENT NIXON MADE WHEN HE -- BY

EDICT -- EFFECTIVELY STOPPED AN INVESTIGATION BY SPECIAL PROSECUTOR

COX INTO EVIDENCE STORED IN THE WHITE HOUSE OF POSSIBLE CRIMINAL

ACTS BY PEOPLE WHO WORKED OR WHO HAD WORKED AT THE WHITE HOUSE OR

WHO HAD OTHERWISE BEEN A PART OF THE NIXON ADMINISTRATION.

I INTEND TO URGE THE AMERICAN BAR ASSOCIATION -- THROUGH

ITS BOARD OF GOVERNORS AND THEN ITS HOUSE OF DELEGATES -- TO TAKE

ACTION TO PRESENT THE VIEWS OF THE ASSOCIATION ON THIS ISSUE TO

THE CONGRESS AND TO THE AMERICAN PEOPLE. AS THE FIRST STEP IN

THAT EFFORT, I HAVE CALLED AN EMERGENCY MEETING OF THE ASSOCIATION'S

BOARD OF GOVERNORS TO CONVENE IN CHICAGO ON NEXT SATURDAY TO CONSIDER

APPROPRIATE ACTIONS. I WILL RECOMMEND THAT THE BOARD CALL AN

EMERGENCY MEETING OF THE ABA HOUSE OF DELEGATES.

FRANKLY, I AM VERY PROUD THAT THE AMERICAN BAR ASSOCIATION

THROUGHOUT ITS HISTORY HAS MOVED WITH DELIBERATE SPEED AND ENERGY

TO PROTECT THE RULE OF LAW WHENEVER THAT RULE HAS BEEN PLACED IN

JEOPARDY. I RECALL THE VIGOROUS ACTION TAKEN BY THE ASSOCIATION IN

1937 WHEN PRESIDENT FRANKLIN ROOSEVELT, PROPOSED THAT THE COMPOSITION

AND FUNCTIONING OF THE FEDERAL COURTS -- WITH PARTICULAR EMPHASIS

ON THE SUPREME COURT -- BE SIGNIFICANTLY ALTERED BY LEGISLATIVE

ACTION TO COMPORT WITH THE POLITICAL NECESSITIES AS HE PERSONALLY

SAW THEM.

To WHAT I BELIEVE IS ITS EVERLASTING CREDIT, THE AMERICAN

BAR ASSOCIATION THERE WILLINGLY AND FORCEFULLY ASSUMED THE LEADERSHIP

ROLE OF PRESERVING THE INDEPENDENCE OF THE JUDICIARY -- OF PRESERVING

THE SEPARATION OF POWERS -- AND THUS PRESERVING THE RULE OF LAW --

BY OPPOSING THAT PROPOSED ENCROACHMENT BY THE PRESIDENT OF THE

- 5 -

UNITED STATES. THE RECORDS OF THE ASSOCIATION SHOW THAT IT RALLIED

THE SUPPORT OF ALL LAWYERS IN THE COUNTRY -- WHETHER ASSOCIATION

MEMBERS OR NOT -- IN OPPOSITION TO THE PRESIDENT'S PLAN TO PACK

THE SUPREME COURT WITH NEW AND ADDITIONAL MEN WHO WOULD DO HIS

BIDDING OR WHO WOULD RULE HIS WAY. I BELIEVE THAT IT WAS IN LARGE

MEASURE DUE TO THE NON-PARTISAN OPPOSITION OF THE AMERICAN BAR

ASSOCIATION THAT THAT PROPOSAL OF PRESIDENT ROOSEVELT WAS DEFEATED

I RECITE THIS HISTORY BECAUSE IT SEEMS TO ME THAT ONCE

AGAIN THE AMERICAN BAR ASSOCIATION -- AND THE LEGAL COMMUNITY --

IN ACCORD WITH PROUD TRADITION OF THE LEGAL PROFESSION -- MUST RALLY

TO THE DEFENSE OF THE COURTS AND THE JUDICIAL PROCESS -- AND THAT

SUCH DEFENSE ONCE AGAIN, IF IT IS TO BE SUCCESSFUL, MUST BE CONDUCTED

IN A NON-PARTISAN -- NON-BIASED MANNER.

- 6 -

THE AMERICAN BAR ASSOCIATION IS NO NEWCOMER TO THE WATERGATE

ARENA. LAST SPRING, PRESIDENT ROBERT MESERVE, ON BEHALF OF THE

ASSOCIATION, CALLED FOR THE APPOINTMENT OF AN INDEPENDENT PROSECUTOR

WITH PLENARY RESPONSIBILITY FOR THE INVESTIGATION AND PROSECUTION OF

POSSIBLE CRIMINAL MATTERS SURROUNDING THE 1972 PRESIDENTIAL CAMPAIGN

AND RELATED ACTS OR DIRTY TRICKS WHICH ALL OF US HAVE NOW-.COMBINED

UNDER THE SIMPLE TITLE OF "WATERGATE". THAT POSITION OF THE ASSOCIATION

WAS BASED UPON THE ALMOST UNIVERSALLY ACCEPTED PROPOSITION THAT

ONLY A PROSECUTOR -- INDEPENDENT AND FREE OF THE DICTATION AND

CONTROL OF THOSE WHOM HE WAS TO INVESTIGATE -- COULD SATISFACTORILY

RESOLVE IN THE MINDS OF THE PEOPLE THE LEGALITY OR ILLEGALITY

OF MATTERS WHICH HE WAS TO INVESTIGATE. THE ASSOCIATION, BY TAKING

THAT POSITION, WAS NOT PICKING UP A NEW OR UNTRIED THEORY --

INSTEAD IT WAS RELYING UPON ITS OWN WIDELY ACCEPTED AND UNIVERSALLY

- 7

HAILED STANDARDS FOR CRIMINAL JUSTICE -- AND -- PARTICULARLY --

ON THE STANDARDS RELATING TO THE PROSECUTORIAL FUNCTION.

THAT

STANDARD CLEARLY PROVIDES THAT PROSECUTING OFFICERS SHOULD HAVE NO

CONFLICT OF INTEREST, OR THE APPEARANCE OF A CONFLICT OF INTEREST.

THUS, UNDER THAT STANDARD IT CLEARLY WAS AND IS IMPROPER FOR AN

INVESTIGATION OF THE EXECUTIVE BRANCH OF THE GOVERNMENT -- OF THE

OFFICE OF THE PRESIDENT OR OF THE PRESIDENT HIMSELF OR OF HIS

CLOSE ASSOCIATES -- TO BE CONDUCTED BY A PROSECUTOR WHO IS UNDER THE

CONTROL AND DIRECTION OF EITHER THE PRESIDENT HIMSELF OR OF SOME

OTHER PERSON WHO HIMSELF IS UNDER THE DIRECTION AND CONTROL OF THE

PRESIDENT. IT WAS THE DESIRE AND GOAL OF THE ASSOCIATION AT THAT

TIME THAT A MAN COMPLETELY INDEPENDENT OF PARTISAN INFLUENCES --

OR THE APPEARANCE OF PARTISAN INFLUENCES -- BE SELECTED TO DISCHARGE

THE RESPONSIBILITIES OF CLEARING UP THE MESS OF WATERGATE FOR THE

- 8

AMERICAN PEOPLE.

SADLY, THAT DESIRE AND THAT GOAL HAVE NOT MATERIALIZED.

BASED UPON ASSURANCES MADE BY ELLIOT RICHARDSON TO THE

SENATE JUDICIARY COMMITTEE DURING HEARINGS ON HIS CONFIRMATION

AS ATTORNEY GENERAL, TO WHICH -- BY HIS SILENCE -- I SUBMIT THAT

PRESIDENT NIXON ACQUIESED, THE AMERICAN BAR ASSOCIATION WAS HOPEFUL

THAT WHEN ARCHIBALD COX WAS APPOINTED AS THE SPECIAL PROSECUTOR

HE WOULD BE ALLOWED TO PURSUE JUSTICE IN LIGHT OF THE PRINCIPLES

THAT I HAVE MENTIONED1

PRESIDENT NIXON HIMSELF STATED THAT THE

ATTORNEY GENERAL HAD FULL AUTHORITY TO APPOINT AN.ABSOLUTELY

INDEPENDENT PROSECUTOR WHO COULD FOLLOW CRIMINAL LEADS WHEREVER

THEY WENT, AND -- EVEN THOUGH WE KNEW THEN THAT UNDER THE LAW

EITHER THE PRESIDENT OR THE ATTORNEY GENERAL COULD LEGALLY RENIG --

STILL WE -- AS ALL OTHER AMERICANS -- WANTED SO VERY MUCH TO

-9-

BELIEVE THAT JUSTICE, UNHAMPERED BY THOSE UNDER INVESTIGATION,

WOULD PREVAIL THAT WE ACCEPTED THE APPOINTMENT OF MR. Cox WITH

HIGH HOPE.

BUT IT WAS NOT TO BE. OUR ADVERSARY SYSTEM OF CRIMINAL JUSTICE -

LONG TESTED IN THIS AND OTHER ENGLISH-SPEAKING COUNTRIES -- REQUIRES

THAT CONTENDING ADVERSARIES BEFORE AN IMPARTIAL JUDGE BE EQUAL IF

IT IS PROPERLY TO FUNCTION. EACH OF THE ADVERSARY PARTIES MUST

BE FREE TO PRESENT TO THAT IMPARTIAL JUDGE FOR DETERMINATION

HIS CONTENTIONS -- HIS CASE. THE JUDGE HIMSELF IS NOT AN ACTOR,

AND IF HE IS TO DO HIS JOB WELL, THE TWO CONTENDING PARTIES MUST

PRESENT TO HIM THE ISSUES FOR DETERMINATION, UNDER SUCH A SYSTEM,

IT IS BOTH IMPERATIVE AND OBVIOUS THAT THE ADVERSARIES MUST BE

FREE TO ACT BEFORE THE COURT WITHOUT INFLUENCE OR CONTROL BY THEIR

OPPONENT. IN THIS WAY WE HISTORICALLY HAVE -- WITH SUCCESS --

- 10 -

TESTED THE TRUTH AND VERITY OF TESTIMONY, OF DOCUMENTARY EVIDENCE,

OF OPPOSING CONTENTIONS. IN AN ADVERSARY WAY, WE HAVE PERMITTED

EACH OPPONENT THE RIGHT TO PICK AT, EXAMINE AND CROSS-EXAMINE --

MATERIAL SUBMITTED TO THE COURT BY THE OPPOSING PARTY, --

CERTAINLY WE HAVE ALLOWED EACH PARTY THE FULL RIGHT TO DETERMINE

WHAT HE WILL PROFFER TO THE COURT TO SUBSTANTIATE HIS POSITION.

IT HAS NEVER BEEN SUGGESTED TO MY KNOWLEDGE ANYWHERE THAT THE

TRUTH OF OPPOSING CONTENTIONS COULD BE FAIRLY AND EQUITABLY

ASCERTAINED IF ONE OF THE OPPOSING PARTIES BEFORE THE COURT COULD

DETERMINE WHAT EVIDENCE AND WHAT CONTENTIONS HIS OPPONENT COULD

PRESENT TO THE JUDGE OR JURY FOR CONSIDERATION.

BUT IN THIS CASE, THERE IS SOMETHING NEW. PRESIDENT NIXON

HAS INSTRUCTED THE SPECIAL PROSECUTOR -- WHO FOR SEVERAL MONTHS HAS

- II -

BEEN SEEKING EVIDENCE UNDER THE CONTROL OF THE WHITE HOUSE IN AN

ADVERSARY COURT PROCEEDING -- TO CEASE AND DESIST -- HAS ORDERED

HIM NOT TO EVEN SECURE A RULING FOR THE DISTRICT COURT OR FROM

THE SUPREME COURT OF THE UNITED STATES OR FROM ANYWHERE AS TO

WHETHER SUCH EVIDENCE OF POSSIBLE CRIMINAL MISCONDUCT IS LEGALLY

OBTAINABLE -- THE SPECIAL PROSECUTOR WAS FORBIDDEN THE RIGHT TO

ASK THE COURT WHERE HE HAD BEEN LITIGATING WITH THE PRESIDENT

WHETHER IT. IS EITHER LEGAL OR ILLEGAL FOR THE PRESIDENT TO WITHHOLD

FROM THE GRAND JURY MATERIALS IN HIS POSSESSION WHICH MIGHT PROVE

OR DISPROVE EITHER THE GUILT OR INNOCENCE OF THOSE BEING INVESTIGATED,

THE PRESIDENT -- BY MANDATING INSTRUCTIONS TO THE PROSECUTOR

WHO WAS HIS ADVERSARY IN A PENDING COURT PROCEEDING -- INSTITUTED

AN INTOLERABLE ASSAULT UPON THE MOST RUDIMENTARY AND BASIC PRINCIPLES

- 12 -

OF JUSTICE. EVERY AMERICAN KNOWS THAT THE COURTS ARE OUR FIRST

LINE OF DEFENSE AGAINST GOVERNMENTAL TYRANNY AND ARBITRARY POWER.

I BELIEVE THAT THE RESULTING OUTCRY OF PEOPLE FROM THROUGHOUT OUR

NATION WAS A RECOGNITION THAT THE ABANDONMENT -- BY PRESIDENTIAL

FIAT -- OF THOSE TIME-TESTED PROCEDURES WHICH TRADITIONALLY HAVE

INSURED THE EQUITABLE RESOLUTION OF DISPUTES BETWEEN MAN AND HIS

GOVERNMENT, CONSTITUTES A CLEAR AND PRESENT DANGER -- OF COMPELLING

SIGNIFICANCE -- TO THE BASIC FABRIC OF OUR NATIONAL WAY OF LIFE.

THE SUBSTITUTION BY THE PRESIDENT OF HIS OWN PROSECUTOR -- A MAN

WHOLLY DEPENDENT ON THE CONTINUED SUPPORT OF AN ACTING ATTORNEY

GENERAL WHO IS WHOLLY DEPENDNET ON THE CONTINUED SUPPORT OF THE

PRESIDENT -- REPRESENTS AN ASSAULT OF WHOLLY UNPRECEDENTED DIMENSION

ON THE VERY HEART OF THE ADMINISTRATION OF JUSTICE AND A DIRECT

- 13 -

ABORTION OF THE ESTABLISHED PROCESSES OF JUSTICE.

I REITERATE MY

PERSONAL OPINION THAT THE GRAVITY OF THE SITUATION DEMANDS RESOLUTE

ACTION ON THE PART OF THE COURTS -- AND IF NECESSARY THE CONGRESS.

WHILE I DO EXPRESS MY GRAVE CONCERN OVER THESE ACTIONS BY THE

PRESIDENT, I SINCERELY BELIEVE THAT THE JUDICIAL AND LEGISLATIVE

FORCES OF THIS NATION WILL ACT SWIFTLY AND DECISIVELY TO CHALLENGE --

REPEAL -- AND CORRECT THIS DAMAGING ENCROACHMENT BY PRESIDENT

NIXON UPON OUR SYSTEM OF JUSTICE.

I BELIEVE THAT ONLY THROUGH SUCH ACTION CAN THE BASIC LIBERTY

OF OUR CITIZENS BE PRESERVED. WHILE I TOO FULLY UNDERSTAND THAT

THE SECURITY OF OUR COUNTRY SHOULD ALWAYS BE UPPERMOST IN OUR

CONCERNS, AS A LAWYER, AS AN AMERICAN, AND AS AN OFFICER OF ITS

COURTS, I AM CONVINCED THAT THERE CAN BE NO MENACE FROM WITHOUT

OUR BORDERS MORE DEVASTATING TO INDIVIDUAL RIGHTS AND FREEDOMS AND

- 14 -

MORE DAMAGING TO OUR IMAGE IN THE EYES OF THOSE OF DIFFERENT NATIONS

THAN A DEFIANT FLOUTING OF LAWS AND COURTS BY OUR PRESIDENT. KNOWING

THAT, I CONTINUE TO HOPE THAT PRESIDENT NIXON, WHOSE ACTIONS IN ALL

RESPECTS ARE SO VERY IMPORTANT TO EVERY AMERICAN -- WILL -- UPON

CONSIDERATION OF THE REACTION OF THE PEOPLE OF THIS NATION --

CHANGE HIS COURSE -- JUST AS HE HAS SINCE THAT TIME -- AFTER STATING

THAT HE NEVER WOULD -- QUITE PROPERLY CHANGED HIS POSITION ON

THE SUBMISSION OF THE PRESIDENTIAL TAPES TO JUDGE SIRICA.

REGARDLESS OF PRESIDENTIAL ACTION -- OR INACTION -- I

BELIEVE THAT CONGRESS SHOULD, AS ITS FIRST PRIORITY, TAKE WHATEVER

MEASURES ARE AVAILABLE TO IT TO RE-ESTABLISH THE OFFICE OF THE

SPECIAL PROSECUTOR AND TO MAKE THE SPECIAL PROSECUTOR INDEPENDENT

OF THE DIRECTION AND CONTROL OF THOSE WHOM HE IS INVESTIGATING.

I CARE NOT WHETHER THE SPECIAL PROSECUTOR IS APPOINTED BY THE

- 1.5 -

CONGRESS OR APPOINTED BY THE DISTRICT COURT -- I CARE NOT WHETHER

HE IS ARCHIBALD COX OR SOME OTHER HIGHLY QUALIFIED LAWYER. I

CARE ONLY THAT THE SPECIAL PROSECUTOR NOT BE AN EMPLOYEE OF OR

UNDER THE CONTROL OF PRESIDENT RICHARD NIXON.

IN MY OPINION WE TRULY ARE PRESENTLY IN THE MIDST OF A

GOVERNMENTAL CRISIS UNPARALLELED IN OUR NATION'S HISTORY, BUT, OR

SO IT SEEMS TO ME, ONLY BECAUSE SUCH CRISIS HAS BEEN SO WILLED BY

THE PRESIDENT.

THE EXECUTIVE LEGISLATIVE AND JUDICIAL BRANCHES

SHOULD EACH SHARE A COMMON CONCERN THAT JUSTICE BE DONE AND THAT

ALL AVAILABLE MATERIAL WHICH WILL HELP TO POINT OUT THE TRUTH

BE SUBMITTED TO THE JUDGE FOR A DETERMINATION OF ITS ADMISSABILITY,

ITS PROBATIVE VALUE, AND ITS VERITY. IF THAT IS A TRUE PRINCIPLE,

IT IS NOT WORKING HERE, SINCE ONE OF OUR THREE GREAT DEPARTMENTS OF

16 -

GOVERNMENT -- THE EXECUTIVE -- IS WHOLLY AND COMPLETELY UNCOOPERATIVE

IN TURNING OVER AVAILABLE MATERIAL WHICH MIGHT HELP TO ESTABLISH

THE GUILT OR INNOCENCE OF EMPLOYEES OR FORMER EMPLOYEES OF THE

EXECUTIVE BRANCH.

GET SUCH EVIDENCE.

INSTEAD, IT FIRES A PROSECUTOR WHO TRIES TO

THE PRESIDENT IS NOT ABOVE THE LAW -- AND HE

CANNOT UNILATERALLY WITHHOLD FROM CONSIDERATION EXECUTIVE MATERIALS

WHICH MIGHT MATERIALLY AFFECT THE DECISION TO PROSECUTE OR NOT

TO PROSECUTE -- NOR CAN HE MANDATE THAT A PROSECUTOR NOT SEEK

SUCH MATERIAL FOR SUBMISSION TO A GRAND JURY. IT SEEMS TO ME

THAT THE DECISIONS MADE AND THAT THE RULES ESTABLISHED OUT OF THIS

GREAT CONTROVERSY WILL HAVE A PROFOUND AND LASTING EFFECT ON OUR

NATION'S FUTURE. AT STAKE ARE THE BASIC PRINCIPLES WHICH GIVE

STRENGTH AND VIABILITY TO OUR SOCIETY.

I SUBMIT THAT THE PEOPLE

- 17

OF THIS COUNTRY WILL NEVER BELIEVE THAT JUSTICE HAS BEEN DONE IN

"WATERGATE" UNTIL SUCH TIME AS A PROSECUTOR -- INDEPENDENT OF THE

WHITE HOUSE -- IS PERMITTED TO GO INTO ALL ASPECTS OF THE MATTER --

A PROSECUTOR APPOINTED BY SOMEONE OTHER THAN THOSE WHOM HE HAS

REASON TO BELIEVE ARE POSSIBLE PARTICIPANTS OR WHO MAY HAVE KNOWLEDGE

ABOUT POSSIBLE PARTICIPATNS WHICH THEY DO NOT WANT REVEALED, AT

THE SAME TIME, I WANT STRONGLY TO POINT OUT MY UNDEVIATING BELIEF

THAT IT IS COMPLETELY PROPER FOR THOSE BEING INVESTIGATED TO SEEK --

THROUGH THE COURTS -- RECOURSE AS TO POSSIBLE OBJECTIONS THAT THEY

MIGHT HAVE TO THE CONDUCT OF THE SPECIAL PROSECUTOR.

IF THOSE WHO

ARE BEING INVESTIGATED FEEL THAT THE MATERIAL SOUGHT BY THE

PROSECUTOR -- OR THE TACTICS HE EMPLOYS -- ARE ILLEGAL -- THEY

PROPERLY SHOULD SUBMIT THEIR OBJECTIONS TO THE COURT FOR A

- 18 -

DETERMINATION AS TO WHETHER THE PROSECUTOR'S ACTS ARE LEGALLY PERMISSIBLE.

BUT OF COURSE THOSE WHO ARE BEING INVESTIGATED CANNOT ALONE MAKE

THAT DETERMINATION -- NO MAN CAN UNDER A GOVERNMENT OF LAWS --

IT MUST BE PRESENTED TO A JUDGE -- AND BE LEGALLY TESTED BY HIS

ADVERSARY,

So BELIEVING THUS, I PLEDGE TO DO ALL WITHIN MY PERSONAL

POWER TO SEE THAT THE AMERICAN BAR ASSOCIATION IF REQUESTED --

ASSIST THE UNITED STATES DISTRICT COURTS AND ANY AND ALL OTHER

FEDERAL COURTS IN THE DISCHARGE OF ITS DUTIES AND RESPONSIBILITIES

IN THIS GOVERNMENTAL CRISIS. I SUGGEST THAT THE NATIONAL LEGAL

AID AND DEFENDER ASSOCIATION CONSIDER WHETHER IT TOO WILL JOIN IN

THIS EFFORT -- WHETHER IT TOO WILL CONDEMN THIS FRONTAL ATTACK ON

THE JUSTICE SYSTEM BY THE PRESIDENT.

- 19

IN THE PAST SEVERAL DAYS, I HAVE HAD OCCASION TO APPLAUD

THE ACTION OF THREE GREAT LAWYERS: ELLIOT RICHARDSON, WILLIAM

RUCKLESHAUS, AND ARCHIBALD COX -- EACH OF WHOM HAS -- IN A MOST

DRAMATIC AND NON-POLITICAL WAY -- DEMONSTRATED TO THE PEOPLE OF

THIS NATION THAT THERE ARE LAWYERS WHO HONOR AND CHERISH LEGAL

TRADITIONS WHO WORK FOR THE FEDERAL GOVERNMENT -- THAT THEY --

LIKE LITERALLY THOUSANDS OF MORE LAWYERS WHO ALSO WORK DILIGENTLY

AND PROFESSIONALLY FOR THE FEDERAL GOVERNMENT -- PUT ETHICS AND

PROFESSIONAL HONOR ABOVE PUBLIC OFFICE. I AM QUITE PROUD OF'EACH

OF THEM.

BY THEIR ACTIONS -- BY THE ACTIONS OF THOUSANDS OF

INDIVIDUAL LAWYERS -- BY THE ACTIONS OF STATE AND LOCAL BAR

ASSOCIATIONS -- AND BY THE ACTIONS OF THE AMERICAN BAR ASSOCIATION,

I VERY MUCH WANT THE AMERICAN PEOPLE AGAIN TO FEEL ASSURED THAT

THOSE WHOSE PROFESSION IS THE LAW -- WE -- THE LAWYERS OF AMERICA --

- 20 -

ARE FIRMLY COMMITTED TO PRESERVING OUR SOCIETY -- UNDER LAW -

AND TO SAFEGUARDING OUR LIBERTIES -- UNDER LAW.

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 88

VOLUME VI

CHESTERFIELD SMITH

PRESIDENT
AMERICAN BAR ASSOCIATION

SYMPOSIUM ON THE ABA
STANDARDS RELATING TO
THE URBAN POLICE
FUNCTION

QUANTICO, VIRGINIA

OCTOBER 28, 1973

REMARKS

BEFORE:

PLACE:

DATE:

TITLE;:

TIME:

ADDRESS OF :

IT SEEMS TO ME THAT THIS SYMPOSIUM IS AN UNUSUALLY

AUSPICIOUS OCCASION FOR THE AMERICAN BAR ASSOCIATION, AS

IT MARKS THE THRESHOLD OF AN IMPORTANT PARTNERSHIP IN

ACTION BETWEEN LAW ENFORCEMENT AND THE BAR.

IN 1964 THE AMERICAN BAR ASSOCIATION COMMITTED ITS

TIME AND RESOURCES TO THE MASSIVE PROJECT OF FORMULATING

THE STANDARDS FOR CRIMINAL JUSTICE. AT ITS MIDYEAR MEETING

IN FEBRUARY, 1973, THE ASSOCIATION ADOPTED THE 17TH AND

FINAL VOLUME OF THOSE STANDARDS RELATING TO THE URBAN

POLICE FUNCTION, As I UNDERSTAND IT, THOSE STANDARDS,

SUPPLEMENTED BY THE LEAA STANDARDS AND GOALS PERTAINING

TO POLICE, WILL BE YOUR TEXT FOR THIS SYMPOSIUM,

-2-

THERE IS NO SPECIAL SIGNIFICANCE IN THAT THE URBAN

POLICE FUNCTION STANDARDS WAS THE LAST OF THE SET OF

STANDARDS. THE SAME ADVISORY COMMITTEE WHICH DRAFTED

THE URBAN POLICE FUNCTION STANDARDS ALSO PRODUCED THE

STANDARDS RELATING TO ELECTRONIC SURVEILLANCE APPROVED

IN 1971. I SUGGEST THAT PERHAPS THE "URBAN POLICE FUNCTION"

MAY ULTIMATELY EARN THE BIBLICAL BLESSING OF -- THE "LAST

SHALL BE FIRST."

THE AMERICAN BAR ASSOCIATION IS JUST AS FIRMLY

COMMITTED TO THE IMPLEMENTATION OF THE STANDARDS AS IT

WAS TO THEIR DRAFTING. TONIGHT WE JOIN FORCES TO LAUNCH

A NATIONWIDE EFFORT TO IMPLEMENT THE IMPORTANT POLICE

STANDARDS -- TO TRANSLATE THE FINDINGS AND RECOMMENDATIONS

-3-

INTO ACTION IN EVERY STATE IN THE UNION.

QUESTIONS HAVE ARISEN CONCERNING THESE STANDARDS

AND LEAA's NATIONAL ADVISORY COMMISSION STANDARDS AND

GOALS. I HAVE DISCUSSED THIS MATTER WITH BOTH FORMER

ATTORNEY GENERAL ELLIOT RICHARDSON AND DON SANTARELLI,

DIRECTOR OF LEAA, AND I FIND NO POLARIZATION BETWEEN OUR

PRODUCT AND THEIRS. I HAVE NO REASON TO BELIEVE THAT

ACTING ATTORNEY GENERAL BORK DOES NOT SHARE THE SAME

VIEWS AS FORMER ATTORNEY GENERAL RICHARDSON.

THE ABA CRIMINAL JUSTICE SECTION, UNDER AN LEAA

GRANT, IS DOING A COMPARATIVE ANALYSIS SO WE CAN SEE

EXACTLY HOW HARMONIOUS THE TWO STUDIES ARE. I AM

ADVISED THAT PRELIMINARY REPORTS SHOW THAT THEY ARE IN

HOPE THAT WHEN THE COMPARATIVE

STUDY IS COMPLETED, THE AMERICAN BAR ASSOCIATION AND

LEAA WILL FORM AN ACTION TEAM TO WORK FOR THE IMPLEMENTATION

OF THE BEST OF BOTH STUDIES. I RECEIVED ASSURANCES OF THAT

POSSIBILITY FROM BOTH FORMER ATTORNEY GENERAL RICHARDSON

AND DON SANTARELLI,

DESPITE EVEN THE SIGNIFICANT WORK OF THE AMERICAN

BAR ASSOCIATION IN DEVELOPING THE STANDARDS, I WANT TO

EMPHASIZE THAT THE URBAN POLICE FUNCTION STANDARDS ARE

NOT THE PROVINCE OF ANY SINGLE GROUP -- NOT EVEN THE ABA,

THE STANDARDS MUST BE CONSIDERED EVERYBODY'S STANDARDS --

YOURS -- OURS -- AND ALL OUR CITIZENS.

THE ABA ADVISORY COMMITTEE WHICH PROMULGATED THESE

SUBSTANTIAL AGREEMENT, I

-5-

STANDARDS WAS LIBERALLY SPRINKLED WITH LAW ENFORCEMENT

REPRESENTATION, AND THE TENTATIVE DRAFT WAS WIDELY

CIRCULATED AND BENEFITED BY SOUND SUGGESTIONS FROM

POLICE GROUPS AND INDIVIDUALS. ESPECIALLY HELPFUL WAS

THE WORK OF THE SPECIAL ADVISORY COMMITTEE OF THE

INTERNATIONAL ASSOCIATION OF CHIEFS OF POLICE, CHAIRED

BY THE ASSOCIATION PRESIDENT -- FRANCIS B. LOONEY --

WHICH COORDINATED THE INPUT OF THE POLICE GROUPS.

THERE WERE, OF COURSE, A FEW VOICES AMONG THE POLICE

WHO FELT THE ABA WAS AN OFFICIOUS INTERMEDLER IN PRESUMING

TO SUGGEST STANDARDS FOR THE POLICE FUNCTION. I AM IN

TOTAL AGREEMENT WITH CHIEF JUSTICE WARREN BURGER IN

BELIEVING THAT THE LEGAL PROFESSION HAS A PARTICULAR

-6-

DUTY TO RENDER ASSISTANCE IN STUDYING THE PROBLEMS AND

RESPONSIBILITIES RELATED TO THE POLICE FUNCTION IN OUR

SOCIETY. I AM CONVINCED THAT PREVIOUS DISCORD HAS

SUBSTANTIALLY DISAPPEARED AND THAT OUR TWO ORGANIZATIONS

AND PROFESSIONS CAN NOW CLOSE RANKS TO WORK FOR THE

MUTUAL BENEFIT OF BOTH ORGANIZATIONS,

THE ABA, THROUGH ITS SECTION OF CRIMINAL JUSTICE,

HAS BEEN COORDINATING THE IMPLEMENTATION OF THE OTHER

ABA STANDARDS BY THE SEVERAL STATES FOR FIVE YEARS.

FORMER SUPREME COURT JUSTICE TOM CLARK HAS, AS CHAIRMAN

OF THE IMPLEMENTATION COMMITTEE, SPEARHEADED THIS GREAT

EFFORT. THE SECTION THEME HAS BEEN "CRIMINAL JUSTICE IS

EVERY LAWYER'S CONCERN," IT SEEMS TO ME THAT THIS SUMS

UP QUITE WELL WHY EVERY MEMBER OF THE BENCH AND BAR

SHOULD ALSO BE INTERESTED IN IMPLEMENTING THE STANDARDS

FOR THE POLICE. CERTAINLY, WE EACH KNOW THE TASK OF

REFORM AND REJUVENATION IS NEVER EASY -- ESPECIALLY IN

THE AREA OF CRIMINAL JUSTICE, THE CAUSE NEEDS ALL THE

HELP IT CAN MUSTER.

IN TOOLING UP FOR IMPLEMENTATION OF THE POLICE

STANDARDS, I HAVE APPOINTED THREE CAREFULLY SELECTED

MEMBERS TO BE THE ABA SEGMENT OF THE JOINT ABA-IACP

COMMITTEE WHICH IS TO WORK UNDER MR. JUSTICE CLARK'S

COMMITTEE AND WHICH IS TO PROVIDE THE EXPERT PLANNING

WHICH THE IMPLEMENTATION OF THESE PARTICULAR STANDARDS

NEEDS, THAT JOINT COMMITTEE HAS BROUGHT THIS SYMPOSIUM

-8-

TOGETHER. FINANCIAL HELP FROM THE POLICE FOUNDATION AND

THE PRESTIGIOUS SUPPORT OF THE FEDERAL BUREAU OF

INVESTIGATION MADE THIS SYMPOSIUM POSSIBLE. I PLEDGE

TO YOU THE CONTINUING CONFIDENCE AND SUPPORT OF THE

ABA IN THIS SIGNIFICANT INTERDISCIPLINARY EFFORT.

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 89

VOLUME VI

THE ORGANIZATION OF THE ABA

BY CHESTERFIELD SMITH

The American Bar Association is the. national voice of

the legal profession in the United States. The key to under-

standing its seemingly complex structure is to focus on that

fact.

The almost 175,000 members of the Association constitute

its strength and establish its stature. Taken together, the

men and women who are ABA members represent more than one half

of the nation's legal profession. The American Bar Association

is the largest voluntary professional association in the world.

The House of Delegates is the representative body which

governs the affairs.of the Association. It is made up of 330

members selected in a number of ways. Association members are

directly represented by a State Delegate elected by mail in a

secret ballot by the members in each state for a three-year

term. These State Delegates have the important responsibility

of nominating Association officers .nd members of the Board

of Governors who also serve in the House of Delegates. Other

delegates are elected as representatives of the 22 voluntary,

autonomous Sections of the Association and by the members of

the Association who attend the Annual Meeting (Assembly Dele-

gates), who serve a two-year term.

*J

Organization. of the ABA
Page Two

Of greater significance is.the fact that more than one-

half of the members of the House are the elected representatives

of all state and all large local bar associations, and other

national legal organizations who also serve for two years. A

study which I had prepared several months ago suggests that

more than 90% of the lawyers in this country are members of

one or more bar associations represented in the House of Dele-

gates. All lawyers, whether members of the ABA or not, are

eligible to participate in the selection of these delegates.

When the House speaks, therefore, it speaks with the authority

of essentially the entire legal profession.

The Board of Governors functions as a Committee of the House

and is vested with authority to manage the affairs of the Associ-

ation between meetings of the House. The majority of its members

are selected on a regional basis, and the officers of the Associ-

ation and a representative of the Judicial Activities Division and

the Young Lawyers Section are also memberss of the Board.
The other great governing body of the Association is the

Assembly whic] is e. o l ,---.s o t so

attending an Annual Meeting. In addition to passing on Constitu-

tional amendments, the Assembly has authority to initiate reso-

lutions which after debate are considered by the House.

Those who practice law have diverse interests and the Associ-

ation's Sections offer members the opportunity of working in a

number of substantive legal areas. I consider the work of the

Organization of the ABA
Page Three

Sections to be the life-blood of Association activity. Sections

are basically autonomous units within the total structure. Their

membership is voluntary, and they have thbir own by-laws and are

financed to a large extent by their own dues. Most members of the

Association have joined one or more Sections. The General Prac-

tice Section is an example of a group carrying out its own high

quality educational and publications program.

From time to time, Sections are criticized as being special
interest groups. I believe this criticism is in large part

unfounded. While we must constantly be on guard against repre-

senting clients' interests, as opposed to our own independent

judgements, Sections offer the opportunity for lawyers with

common interests and concerns to work together. Sections cannot,

acting alone, form policy for the Association. The House of

Delegates, being fully representative of the entire profession,

must act and that assures that the Association will not serve

special interests.

Outside of Sections, the bulk of the Association's work is

done by Special and Standing Committees. These Committees are

ap .-....l ; .... 'iont a recpoj to the House uf Delegates.

In contrast to Sections, which as I have suggested may be made up

of lawyers with specific interests, I believe the Association

should have Committees with full and divergent views on all matters

with which the Association is concerned. Certainly, there must

be a Committee group in any area where the public interest demands

. Organization of the ABA
Page Four

Association attention and concern.

As the national voice of the legal profession, the ABA exists,

in my view, to discharge the collective responsibilities which

individual-members of the profession have to our society. Thus,

in a real sense, the organization of the Association begins and
ends with its members. It begins with a membership which makes

it the prestigious organization it is and in the final analysis,

it is its members whose hard work and dedication make it possible

to realize its potential.

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 90

VOLUME VI

	Table of Contents
	Conference on continuing legal...
	The organized bar and the judiciary...
	Remarks of Chesterfield Smith relating...
	Symposium on the ABA standards...
	The organization of the ABA
	Unveiling the ceremony and dedication...
	Strong state constitutions as the...
	The American Bar Association and...
	Dedication ceremonies of the C....
	Watergate: A challenge to...
	Methods of judicial selection:...
	Reactions to Watergate: Threats...
	Reactions to Watergate: Threats...
	Association of American law...
	Professional discipline: A call...
	Lawyer competence - Whose...

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