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

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Title:
Speeches by Chesterfield - Vol. VI, 85-100. 1973-1974
Series Title:
Speeches, 1956-2003
Physical Description:
Unknown
Language:
English
Creator:
Smith, Chesterfield H., 1917-2003
Publication Date:
Physical Location:
Box: 130
Folder: Speeches by Chesterfield - Vol. VI, 85-95. 1973-1974

Record Information

Source Institution:
University of Florida
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
sobekcm - AA00005983_00001
System ID:
AA00005983:00001


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Full Text









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




Full Text