Speeches by Chesterfield - Vol. VII, 101-123. 1974

VOLUME VII

SPEECH NUMBER TITLE OR GROUP ADDRESSED

#101 THE LEGAL PROFESSION AND PROFESSIONAL
COMPETENCE -.
NATIONAL CONFERENCE OF BAR PRESIDENTS -
MIDYEAR MEETING -
Houstin, '-Texas
February 2, 1974'

#102 STATEMENT OF CHESTERFIELD SMITH
QON NATIONAL NO-FAULT MOTOR
VEHICLE ;INSURANCE ACT -
SENATE JUDICIARY COMMITTEE IN
OPPOSITION TO S.354.-
Washington, D. C.
February. 7, 1974

#103 OPPORTUNITIES FOR POLITICAL AND
GOVERNMENTAL IMPROVEMENTS. -
FIFTH ANNUAL BANQUET BROTHERHOOD
AWARDS DINNER TAMPA BAY
CHAPTER.- NATIONAL CONFERENCE
.OF ..CHRISTIANS AND JEWS -
Tampa, Florida .
March 12, -1974

#104 CITIZENS. COALITION FOR COURT
IMPROVEMENT: A PROPOSAL -
CAPITOL. HILL CHAPTER OF -THE
FEDERAL BAR-ASSOCIATION -
Washington,, D. C. -
March 14, 1974

#105 FEDERAL'JUDGES SALARIES,
SPRING MEETING AMERICAN COLLEGE '
OF TRIAL LAWYERS -
Boca Raton, Florida
March 18, 1974

:-: ~nr~-.r.- Ir^-r*~~---~-L--;_-_____~_~._.. .._

VOLUME VII (cont.)

SPEECH NUMBER TITLE OR GROUP ADDRESSED

#106 OPPORTUNITIES FOR POLITICAL AND
GOVERNMENTAL IMPROVEMENTS -
DADE COUNTY BAR ASSOCIATION -
Miami, Florida
March 20, 1974

#107 OPPORTUNITIES FOR POLITICAL AND
GOVERNMENTAL IMPROVEMENTS -
EIGHTH ANNUAL DINNER OF THE LAW
SOCIETY OF ARIZONA STATE UNIVERSITY -
Phoenix, Arizona
March 27, 1974

#108 THE COURTS AND THE ADMINISTRATION
OF JUSTICE AS THE KEY TO
INDIVIDUAL LIBERTIES -
GRADUATION CEREMONIES -
INSTITUTE FOR COURT MANAGEMENT -
Denver, Colorado
March 29, 1974

#109 REMARKS OF CHESTERFIELD SMITH
CONCERNING JUDICIAL COMPENSATION
IN THE STATE OF FLORIDA
Tallahassee, Florida
April 10, 1974

#110 THE FORD FOUNDATION PUBLIC
INTEREST LAW CONFERENCE. -
San Diego, California
April 16, 1974

#111 OPPORTUNITIES FOR POLITICAL AND
GOVERNMENTAL IMPROVEMENTS -
WOMEN'S NATIONAL DEMOCRATIC
CLUB OF WASHINGTON, D. C.
Washington, D. C.
April 18, 1974

- *- -.... .. ,

VOLUME VII (cont.)

SPEECH NUMBER TITLE OR GROUP ADDRESSED

#112 DEDICATION CEREMONIES OF THE LEON
JAWORSKI WING OF MORRISON CONSTITUTION
HALL AT THE BAYLOR UNIVERSITY SCHOOL
OF LAW -
Waco, Texas
April 27, 1974

#113 THE RULE OF LAW -
COMMENCEMENT EXERCISES -
SAINT LEO COLLEGE -
Saint Leo, Florida
April 28, 1974

#114 OPPORTUNITIES FOR POLITICAL
AND GOVERNMENTAL IMPROVEMENTS -
PENSACOLA ROTARY CLUB -
Pensacola, Florida
April 30, 1974

#115 REQUIREMENTS OF GOOD CITIZENSHIP -
NATURALIZATION CEREMONIES
Pensacola., Florida
May 1, 1974

#116 "LAW IN THE 80s" CONFERENCE OF
THE OREGON STATE BAR ASSOCIATION -
Mount Hood, Weeme, Oregon
May 4, 1974

#117 PRESENTATION OF HERBERT LINCOLN
HARLEY AWARD OF THE AMERICAN
JUDICATURE SOCIETY TO EARL MORRIS -
Toledo, Ohio
May 10, 1974

#118 1974 ANNUAL JUDICIAL CONFERENCE OF
THE UNITED STATES COURTS OF THE
FIFTH JUDICIAL CIRCUIT -
New Orleans, Louisiana
May 27, 1974

VOLUME VII (cont.)

SPEECH NUMBER

TITLE OR GROUP ADDRESSED

#119 PROFESSIONAL DISCIPLINE: A CALL
TO ACTION -
GRIEVANCE WORKSHOP THE FLORIDA
BAR ANNUAL MEETING -
Walt Disney World, Florida
May 30, 1974

#120

#121

#122

#123

GENERAL PRACTICE SECTIONS
REGIONAL ROUNDUP FOR SOLO
PRACTITIONERS AND SMALL FIRMS -
Kansas City, Missouri
June 1, 1974

24TH UAW CONSTITUTIONAL CONVENTION -
Los Angeles, California
June 3, 1974

FIFTH ANNIVERSARY LUNCHEON OF
BUSINESS AND PROFESSIONAL PEOPLE
FOR THE PUBLIC INTEREST -
Chicago, Illinois
June 18, 1974

HOUSTON BAR ASSOCIATION
Houston, Texas
July 11, 1974

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 101

VOLUME VII

ADDRESS OF:

CHESTERFIELD SMITH

PRESIDENT

AMERICAN BAR ASSOCIATION

BEFORE:

NATIONAL CONFERENCE OF BAR

PRESIDENTS

AMERICAN BAR ASSOCIATION

MID-YEAR MEETING, HOUSTON, TEXAS

DATE OF DELIVERY:

TITLE:

SATURDAY, FEBRUARY 2, 1974

THE LEGAL PROFESSION AND

PROFESSIONAL COMPETENCE

FIFTEEN MINUTES

#iof/

TIME:

THERE ARE TWO GENERALLY ACCEPTED CONCEPTIONS

CONCERNING THE LEGAL PROFESSION WHICH I BELIEVE

SHOULD NOW BE REEXAMINED BY THE ORGANIZED BAR AT

ALL LEVELS: LOCAL, STATE AND NATIONAL,

FIRST -- THE THEORY THAT BAR ADMISSION -- A

LICENSE TO PRACTICE LAW -- SHOULD BE GOOD FOR LIFE --

AND SECOND -- THE ASSUMPTION BY THE GENERAL PUBLIC THAT

LAWYERS ARE OMNICOMPETENT TO PERFORM ALL LEGAL TASKS,

AFTER SOME HOLDING BACK, I HAVE FINALLY BECOME CONVINCED

THAT PRESENT PROCEDURES ALLOWING LAWYERS TO RETAIN

LIFELONG LICENSES TO PRACTICE BASED SOLELY UPON PASSAGE -

USUALLY AT EARLY AGES -- OF BAR EXAMINATIONS -- OR IN

-2-

SOME FEW AREAS, SIMPLY BY GRADUATION FROM A LAW SCHOOL --

ARE NO LONGER ADEQUATE GUARANTEES OF LIFETIME COMPETENCE --

IF THEY EVER WERE. IT IS ALSO OBVIOUS TO ME THAT EVEN

THE VERY BEST LAWYERS ARE USUALLY TRULY COMPETENT AND

PROFICIENT IN ONLY A FEW AREAS OF THE LAW -- MINIMALLY

COMPETENT IN SOME OTHER AREAS, AND -- MOST LIKELY -

INCOMPETENT -- OR AT LEAST INEFFICIENT -- IN THE REST,

I ASSERT THAT AS PART OF OUR PUBLIC AND PROFESSIONAL

RESPONSIBILITY THE ORGANIZED BAR -- AND YOU AND I AS

ITS LEADERS MUST FACE THESE ISSUES AND PROMPTLY CORRECT

ANY ABUSES RESULTING FROM THEM, NO LONGER SHOULD WE AS

PROFESSION ALLOW MARGINAL LAWYERS REPEATEDLY TO ACCEPT

-3-

CASES THAT THEY CANNOT COMPETENTLY AND PROFICIENTLY HANDLE

OR LET SOME DRIFT IN AND OUT OF THE PROFESSION WITHOUT SOME

DEMONSTRATION THAT THEY HAVE RETAINED AT LEAST A MINIMAL

LEVEL OF COMPETENCE, THE LEGAL PROFESSION HAS AN OVERRIDING

OBLIGATION TO THE PUBLIC -- IT SEEMS TO ME -- TO INSURE

THAT EACH AND EVERY INDIVIDUAL LAWYER HIRED BY THEM TO

HANDLE THEIR LEGAL AFFAIRS IS COMPETENT TO DO SO. IT IS

MY JUDGMENT THAT NOW TO ABDICATE THAT RESPONSIBILITY WILL

INEVITABLY LEAD TO A LOSS OF THE TIME-HONORED RIGHT OF

LAWYERS TO GOVERN THEMSELVES -- TO REGULATE OUR OWN

PROFESSION, I SUGGEST THAT BY DEFAULTING WE WILL BE

CHOOSING THE ALTERNATIVE OF LETTING SOME CONSUMER-MINDED

-.4-

AGENCY -- GOVERNMENTAL OR OTHERWISE -- DO IT FOR US, 10

CONTINUE TO BE WORTHY OF OUR PROFESSIONAL STATUS, I FOR

ONE AM CONVINCED THAT WE MUST DO IT OURSELVES.

SOME LAWYERS FOR VARIOUS REASONS FEEL THAT THE BAR

SHOULD LEAVE THIS PROBLEM ALONE, CONTENDING THAT CLIENTS

THEMSELVES WEED OUT BAD LAWYERS FROM GOOD LAWYERS. BUT I

SUGGEST TO YOU -- OUT OF THE COMMON EXPERIENCE WE SHARE --

THAT CLIENTS ARE NOT READILY ABLE TO DISCERN OR EVALUATE

THE ABILITY OF ATTORNEYS, EVEN WHEN THEY HAVE RECEIVED

TERRIBLE OR BAD SERVICE. FURTHER, IT IS INCONSISTENT WITH

PROFESSIONAL STANDARDS AND PROFESSIONAL INTEGRITY, IT SEEMS

TO ME, TO SUGGEST THAT IT BE LEFT TO THE DAMAGED CLIENT TO

-5-

DISCOVER THE FACT HIMSELF AND TO SEEK OUT A COMPETENT LAWYER

TO REPLACE THE POOR ONE AND THE POOR SERVICE THAT HE OR SHE HAS

PREVIOUSLY RECEIVED, IN ESSENCE, I BELIEVE, IT IS NOT

SUFFICIENT TO RELY ON THE ECONOMIC MARKETPLACE AS THE MEANS

TO INSURE THAT LAWYERS PROVIDE GOOD SERVICE, STAY UP-TO-DATE,

AND RENDER COMPETENT LEGAL COUNSEL. AN EVEN GREATER DIFFICULTY

IN RELIANCE ON SUCH A SYSTEM IS ENCOUNTERED WITH THE LITERALLY

THOUSANDS OF LAWYERS WHO HAVE LITTLE OR NO CLIENT CONTACT,

SUCH AS HOUSE COUNSEL, GOVERNMENT LAWYERS, LAW PROFESSORS,

AND THOSE WHO ARE MORE INVOLVED WITH A BUSINESS CAREER THAN

THE LAW.

I SUGGEST THAT THE ORGANIZED BAR SHOULD ESTABLISH

-6-

PROCEDURES WHEREBY ALL ATTORNEYS, IN ORDER TO MAINTAIN THEIR

LICENSE -- THE PRIVILEGE TO PRACTICE LAW -- DEMONSTRATE TO

THEIR PEERS ON A REGULAR BASIS THEIR CONTINUING COMPETENCE

AT THE BAR. I SUGGEST THAT ALL STATES, THROUGH THEIR STATE

BAR ASSOCIATIONS, AND THAT YOU AS BAR PRESIDENTS AND LEADERS

OF THE LEGAL PROFESSION, CONSIDER NOW THE ESTABLISHMENT AND

IMPLEMENTATION OF PROGRAMS FOR THE RECERTIFICATION OF LEGAL

COMPETENCY -- OR THE COMPULSORY RE-LICENSING -- OF LAWYERS.

COMPETENCE, OF COURSE, INVOLVES SEVERAL THINGS

UNMEASURABLE, SUCH AS INTEGRITY, CHARACTER, WORK HABITS,

KNOWLEDGE, ORGANIZATION, AND SELF-DISCIPLINE,

I AM

CONVINCED, HOWEVER, THAT WE CAN -- AND INDEED MUST --

-7-

DESIGN SYSTEMS ESTABLISHING, ENFORCING, AND MAINTAINING AT

LEAST MINIMUM LEVELS OF COMPETENCE NEEDED TO PROTECT THE

PUBLIC FROM THE SHODDY OR INCOMPETENT PRACTITIONER,

THERE ARE, OF COURSE, MULTIPLE POSSIBLE SOLUTIONS AND

METHODS THAT COULD BE IMPROVISED TO DEMONSTRATE CONTINUING

LAWYER COMPETENCE. PEER GROUP EVALUATION, TIED INTO SOME

SORT OF CONTINUING LEGAL EDUCATION REQUIREMENTS, SIMILAR TO

THOSE PROGRAMS NOW IN THE FORMATIVE STAGES IN KANSAS,

MINNESOTA AND CALIFORNIA, CERTAINLY MERIT THE SERIOUS

ATTENTION OF THE ORGANIZED BAR AT ALL LEVELS, PERSONALLY

I CAN SEE NO LOGICAL POSITION WHICH CAN BE ADVANCED TO

OPPOSE A STATE REQUIREMENT THAT LAWYERS, UNDER THE

-8-

SUPERVISION OF THE ORGANIZED BAR AT THE STATE OR LOCAL LEVEL,

PERIODICALLY REFURBISH, RENEW AND UPDATE THEIR LEGAL KNOWLEDGE.

IT SEEMS TO ME THAT SUCH A MANDATORY PRACTICE SHOULD BE

INSTITUTED AT ONCE, SINCE I BELIEVE THAT IT IS CRYSTAL CLEAR

THAT VOLUNTARY CLE PROGRAMS THROUGHOUT THE NATION ARE

UTILIZED IN THE MAIN BY THOSE IN THE LEGAL PROFESSION WHO

NEED IT LEAST -- BY THE ALREADY COMPETENT LAWYERS WHO,

WITHOUT URGING, CONTINUOUSLY RENEW AND UPDATE THEIR

PROFESSIONAL KNOWLEDGE AND PROFICIENCY1

ANOTHER MOVEMENT IN THE LAW -- THAT OF REGULATED

SPECIALIZATION -- IS ALSO INEXTRICABLY TIED INTO RAISING

THE OVERALL QUALITY OF THE LEGAL PROFESSION AND THUS THE

-9-

QUALITY OF SERVICE LAWYERS GIVE THEIR CLIENTS. SPECIALIZATION --

IN MY OPINION -- CAN ONLY HELP THE PROFESSION RENDER BETTER

SERVICE TO OUR CLIENT PUBLIC -- THERE IS NO WAY IN WHICH IT

CAN HURT -- AND I APPLAUD THE CURRENT EFFORTS IN SEVERAL

STATES, SUCH AS NEW MEXICO, CALIFORNIA, ARIZONA, TEXAS AND

FLORIDA, IN PIONEERING REGULATED SPECIALTY PROCEDURES,

RECERTIFICATION AND SPECIALIZATION, IN CONJUNCTION WITH

MUCH STRONGER CONTINUING LEGAL EDUCATION REQUIREMENTS OR

THEIR EQUIVALENT WILL, I BELIEVE, ULTIMATELY UPGRADE THE

ENTIRE PROFESSION AND DISCOURAGE -- AT LEAST IN MOST CASES --

LAWYERS FROM TAKING ON PROBLEMS THEY CAN'T -- OR SHOULDN'T --

HANDLE.

-10-

QUALITY LEGAL SERVICE TO OUR CLIENT PUBLIC DOES NOT,

HOWEVER, SOLELY DEPEND ON LAWYER COMPETENCE, NOTHING IS

MORE IMPORTANT EVEN TODAY TO THE QUALITY OF OUR JUSTICE THAN

TO ATTRACT AND RETAIN THE BEST QUALIFIED -- THE MOST

COMPETENT -- MEN AND WOMEN TO THE BENCH, SINCE -- IN TRUTH -

THE FINAL QUALITY OF OUR JUSTICE IS DETERMINED BY THE

QUALITY OF OUR JUDGES,

THE AMERICAN BAR ASSOCIATION HAS WORKED FOR YEARS TO

IMPROVE THE MANNER OF SELECTING JUDGES AT BOTH STATE AND

FEDERAL LEVELS, AS WELL AS THE CONDITIONS UNDER WHICH THEY

WORK, FOR THAT SAME REASON, IT HAS CONTINUOUSLY CHAMPIONED

THE CAUSE OF PROVIDING FAIR AND REASONABLE COMPENSATION FOR

-11-

JUDGES IN ORDER TO MAKE JUDGESHIPS ECONOMICALLY VIABLE

POSSIBILITIES TO THOSE LAWYERS WHOSE LEARNING, SKILL AND

EXPERIENCE PLACE THEM IN THE FRONT RANK OF THE PROFESSION,

THE SALARIES OF FEDERAL JUDGES HAVE BEEN FROZEN AT

$40,000 SINCE MARCH 1, 1969 -- A SEVERE INJUSTICE IN LIGHT

OF THE EVER-INCREASING COSTS AND PRICES OVER THE PAST FIVE

YEARS, DURING THAT SAME PERIOD -- AND IN SPITE OF WAGE

CONTROLS AND POSTPONEMENTS -- THE SALARY LEVEL OF GENERAL

FEDERAL EMPLOYEES HAS INCREASED BY 34 PERCENT,

IT IS OBVIOUS TO ME THAT WHAT WE PAY OUR JUDGES MUST

BE SUFFICIENT TO ATTRACT THOSE INDIVIDUALS WHO CAN PERFORM

THE MOST DIFFICULT JUDICIAL TASKS COMPETENTLY, AND WHO WILL

-12-

DO SO IN AN HONEST AND ETHICAL WAY. MINDFUL THAT THERE ARE

AND WILL CONTINUE TO BE EXCEPTIONS, I BELIEVE THAT APPOINTMENT

TO A FEDERAL JUDGESHIP AT THE PRESENT SALARY LEVEL WOULD

REPRESENT A SUBSTANTIAL SACRIFICE OF PRESENT AND FUTURE

EARNING CAPACITY FOR MANY OF THE LAWYERS WHO ARE WELL'

QUALIFIED FOR THAT POSITION. WE SHOULD NO LONGER EXPECT

OUR PRESENT SITTING JUDGES WHOj IN MOST CASES, ARE OUTSTANDING

IN EVERY DEGREE, TO MAKE LIFELONG PERSONAL SACRIFICES. NOR

SHOULD WE ALLOW THE JUDICIARY TO FALL AVAILABLE IN THE

FUTURE TO THOSE WHOSE PRIVATE MEANS OR WILLINGNESS TO EARN

AT LESS THAN CAPACITY PERMITS THEM TO SERVE AT THE PRESENT

SALARY SCALE,

-13-

FOR THOSE REASONS, AT ITS OCTOBER 1973 MEETING, THE

ABA BOARD OF GOVERNORS RESOLVED TO URGE PRESIDENT NIXON

TO RECOMMEND A SUBSTANTIAL SALARY INCREASE FOR MEMBERS

OF THE FEDERAL JUDICIARY,

THE BOARD FOR SIMILAR REASONS

ALSO URGED ALL STATE BAR ASSOCIATIONS TO CONDUCT CONTINUING

EXAMINATIONS OF THE ADEQUACY OF JUDICIAL COMPENSATION IN

THEIR STATES.

THE SUBJECT OF FEDERAL JUDICIAL SALARIES IS TIMELY,

SINCE PRESIDENT NIXON ON NEXT MONDAY WILL MAKE HIS OWN

RECOMMENDATIONS FOR ADJUSTMENTS IN FEDERAL JUDICIAL SALARIES

AS PART OF HIS BUDGET MESSAGE. I THEREFORE RECENTLY CALLED

UPON EACH STATE BAR PRESIDENT TO JOIN WITH ME IN VIGOROUSLY

-14-

URGING THE PRESIDENT AND CONGRESS TO SUBSTANTIALLY RAISE

THE SALARY LEVEL FOR FEDERAL JUDGES. MANY OF YOU HAVE DONE

SO -- BUT WE MUST DO MUCH MORE IF THIS IMPORTANT RESULT IS

TO BE OBTAINED, AGAIN, I URGE EACH OF YOU WHO HAS NOT

CONTACTED ALL MEMBERS OF YOUR CONGRESSIONAL DELEGATION TO

DO SO IMMEDIATELY.

AS ANOTHER MATTER, I PERSONALLY BELIEVE THAT THE DAY

HAS NOW BEEN REACHED WHEN DISCIPLINARY ACTION SHOULD BE TAKEN

AGAINST ATTORNEYS WHO FAIL TO MAINTAIN OR EXERCISE COMPETENCE

AS ATTORNEYS, CANON SIX OF THE ABA CODE OF PROFESSIONAL

RESPONSIBILITY REQUIRES LAWYERS TO REPRESENT CLIENTS

COMPETENTLY AND MANDATES THAT LAWYERS STRIVE-TO BECOME

-15-

AND REMAIN PROFICIENT IN THEIR PRACTICE. IF, THEREFORE, THE

CODE MANDATES THAT LAWYERS REMAIN COMPETENT -- THEN THOSE WHO

RENDER SHODDY OR BAD SERVICE BECAUSE OF BASIC INCOMPETENCE

ARE GUILTY, IT SEEMS TO ME, OF ETHICAL MISCONDUCT. IF WE

ARE TO FACE UP TO OUR PUBLIC AND PROFESSIONAL RESPONSIBILITY,

I SUBMIT THAT GRIEVANCE COMMITTEES AND DISCIPLINARY COMMISSIONS

MUST BEGIN TO INVOLVE THEMSELVES IN DISCIPLINARY SANCTIONS

AGAINST THOSE WHO HABITUALLY GIVE BAD SERVICE TO CLIENTS.

THE ORGANIZED BAR, I FEEL, SHOULD NOT OPPOSE -- AND PERHAPS

SHOULD EVEN ENCOURAGE -- MALPRACTICE SUITS AGAINST INCOMPETENT

ATTORNEYS, ABLE LAWYERS SHOULD COME FORTH WILLINGLY TO

TESTIFY CONCERNING THE STANDARD OF CARE OF PRUDENT LAWYERS

-16-

IN ANY GIVEN SITUATION, I AM NOT SURE THAT SUCH IS NOW

THE PREVAILING PRACTICE.

IN ADDITION, STATE AND LOCAL

BAR ASSOCIATIONS MIGHT. WELL LOOK INTO THE FEASIBILITY OF

ESTABLISHING COMPETENCY BOARDS TO REVIEW QUESTIONS OF

MALPRACTICE, AND IN ALL CASES IN WHICH A COMPLAINT IS

JUSTIFIED, MAKE RECOMMENDATIONS FOR RECOVERABLE SETTLEMENTS

BY THE GUILTY LAWYER -- OR, IF THAT FAILS -- FURNISH

WITNESSES FOR THE INJURED PARTY IN A MALPRACTICE SUIT,

ON ANOTHER SUBJECT, I REPORT TO YOU THAT THE

AMERICAN BAR ASSOCIATION'S FUND FOR PUBLIC EDUCATION

CONTINUES TO GROW IN DOLLAR VOLUME AND PROGRAM DIVERSITY,

As ONE EXAMPLE OF SPECIAL INTEREST TO YOU AS STATE AND

-17-

LOCAL BAR LEADERS OF NEW DEVELOPMENTS AND EXCITING

PROGRAMS OF THE FUND, THE ASSOCIATION IS CURRENTLY

ENGAGED IN ACTIVE NEGOTIATIONS WITH A PROMINENT

NATIONAL FOUNDATION WHICH WE HOPE WILL LEAD TO THE

FUNDING OF A SUBSTANTIAL GRANT-IN-AID PROGRAM THROUGH WHICH

THE ASSOCIATION WILL ADMINISTER SUB-AWARDS OR SUB-GRANTS

TO STATE AND LOCAL BAR ASSOCIATIONS,

]HE ASSOCIATION

AND THE FOUNDATION FEEL THAT SUCH A PROGRAM CAN

MATERIALLY ASSIST STATE AND LOCAL BARS BY STIMULATING

PROJECTS AT THE STATE AND LOCAL LEVELS IN AREAS SUCH AS-

FOR INSTANCE-CORRECTIONS REFORM. NOT ONLY WOULD- THE

ASSOCIATION LEND ENCOURAGEMENT, SUASION, AND MANPOWER

-18-

TO PROGRAM DEVELOPMENT AT THE STATE AND LOCAL LEVELS

AS IT HAS TRADITIONALLY DONE, BUT IN ADDITION -- FOR

THE FIRST TIME -- BACK UP ITS PROPOSALS WITH SUBSTANTIAL

INVESTMENTS OF DOLLARS. PENDING FINAL NEGOTIATIONS,

THE ASSOCIATION AND THE FOUNDATION HOPE TO HAVE A JOINT

ANNOUNCEMENT OF THIS PROGRAM IN THE NEAR FUTURE.

IN CONCLUSION, I STATE MY FERVENT BELIEF THAT THE

PUBLIC HAS THE RIGHT TO DEMAND THAT WE WHO HAVE BEEN

GRANTED THE SEMI-MONOPOLY TO SERVE AS THE MAJOR BULWARK

BETWEEN MAN AND HIS GOVERNMENT -- TO BE HIS ADVOCATE --

TO BE HIS COUNSELOR WHEN HE FACES HIS MOST SERIOUS

DECISIONS -- BE OF THE HIGHEST PROFESSIONAL QUALITY AND

WORTHY OF THE UNIQUE TRUST SO PLACED IN US,

-19-

THE TITLE OF LAWYER SHOULD BE WORN PROUDLY AS A

STAMP OF INTEGRITY, COMPETENCE AND COURAGE, THE PUBLIC

SHOULD KNOW THAT LAWYERS ARE SPECIAL MEN -- DEDICATED

TO JUSTICE AND UNIQUELY HONORED BY THE SPECIAL TRUST

PLACED IN THEM BY THE PUBLIC. MY PURPOSE IS TO

CHALLENGE YOU TO DO ALL YOU CAN TO IMPROVE OUR GREAT

PROFESSION AND TO ENHANCE OUR SERVICE TO THE PUBLIC SO

THAT WE CAN ALL PROUDLY SAY THAT EVERY LAWYER IS TRULY

AN HONORABLE AND CAPABLE PROFESSIONAL,

CHESTERFIELD SMITH

PRESIDENT

AMERICAN BAR ASSOCIATION

NATIONAL CONFERENCE OF BAR

PRESIDENTS

AMERICAN BAR ASSOCIATION

MID-YEAR MEETING, HOUSTON, TEXAS

DATE OF DELIVERY:

TITLE:

SATURDAY, FEBRUARY 2, 1974

THE LEGAL PROFESSION AND

PROFESSIONAL COMPETENCE

FIFTEEN MINUTES

ADDRESS OF:

BEFORE:

TIME:

THERE ARE TWO GENERALLY ACCEPTED CONCEPTIONS

CONCERNING THE LEGAL PROFESSION WHICH I BELIEVE

SHOULD NOW BE REEXAMINED BY THE ORGANIZED BAR AT

ALL LEVELS: LOCAL, STATE AND NATIONAL.

FIRST -- THE THEORY THAT BAR ADMISSION -- A

LICENSE TO PRACTICE LAW -- SHOULD BE GOOD FOR LIFE --

AND SECOND -- THE ASSUMPTION BY THE GENERAL PUBLIC THAT

LAWYERS ARE OMNICOMPETENT TO PERFORM ALL LEGAL TASKS,

AFTER SOME HOLDING BACK, I HAVE FINALLY BECOME CONVINCED

THAT PRESENT PROCEDURES ALLOWING LAWYERS TO RETAIN

LIFELONG LICENSES TO PRACTICE BASED SOLELY UPON PASSAGE -

USUALLY AT EARLY AGES -- OF BAR EXAMINATIONS -- OR IN

-2-

SOME FEW AREAS, SIMPLY BY GRADUATION FROM A LAW SCHOOL --

ARE NO LONGER ADEQUATE GUARANTEES OF LIFETIME COMPETENCE --

IF THEY EVER WERE. IT IS ALSO OBVIOUS TO ME THAT EVEN

THE VERY BEST LAWYERS ARE USUALLY TRULY COMPETENT AND

PROFICIENT IN ONLY A FEW AREAS OF THE LAW -- MINIMALLY

COMPETENT IN SOME OTHER AREAS, AND -- MOST LIKELY --

INCOMPETENT -- OR AT LEAST INEFFICIENT -- IN THE REST

I ASSERT THAT AS PART OF OUR PUBLIC AND PROFESSIONAL

RESPONSIBILITY THE ORGANIZED BAR -- AND YOU AND I AS

ITS LEADERS MUST FACE THESE ISSUES AND PROMPTLY CORRECT

ANY ABUSES RESULTING FROM THEM, NO LONGER SHOULD WE AS

PROFESSION ALLOW MARGINAL LAWYERS REPEATEDLY TO ACCEPT

CASES THAT THEY CANNOT COMPETENTLY AND PROFICIENTLY HANDLE

OR LET SOME DRIFT IN AND OUT OF THE PROFESSION WITHOUT SOME

DEMONSTRATION THAT THEY HAVE RETAINED AT LEAST A MINIMAL

LEVEL OF COMPETENCE. THE LEGAL PROFESSION HAS AN OVERRIDING

OBLIGATION TO THE PUBLIC -- IT SEEMS TO ME -- TO INSURE

THAT EACH AND EVERY INDIVIDUAL LAWYER HIRED BY THEM TO

HANDLE THEIR LEGAL AFFAIRS IS COMPETENT TO DO SO. IT IS

MY JUDGMENT THAT NOW TO ABDICATE THAT RESPONSIBILITY WILL

INEVITABLY LEAD TO A LOSS OF THE TIME-HONORED RIGHT OF

LAWYERS TO GOVERN THEMSELVES -- TO REGULATE OUR OWN

PROFESSION, I SUGGEST THAT BY DEFAULTING WE WILL BE

CHOOSING THE ALTERNATIVE OF LETTING SOME CONSUMER-MINDED

AGENCY -- GOVERNMENTAL OR OTHERWISE -- DO IT FOR US, To

CONTINUE TO BE WORTHY OF OUR PROFESSIONAL STATUS, I FOR

ONE AM CONVINCED THAT WE MUST DO IT OURSELVES.

SOME LAWYERS FOR VARIOUS REASONS FEEL THAT THE BAR

SHOULD LEAVE THIS PROBLEM ALONE, CONTENDING THAT CLIENTS

THEMSELVES WEED OUT BAD LAWYERS FROM GOOD LAWYERS, BUT I

SUGGEST TO YOU -- OUT OF THE COMMON EXPERIENCE WE SHARE --

THAT CLIENTS ARE NOT READILY ABLE TO DISCERN OR EVALUATE

THE ABILITY OF ATTORNEYS, EVEN WHEN THEY HAVE RECEIVED

TERRIBLE OR BAD SERVICE. FURTHER, IT IS INCONSISTENT WITH

PROFESSIONAL STANDARDS AND PROFESSIONAL INTEGRITY, IT SEEMS

TO ME, TO SUGGEST THAT IT BE LEFT TO THE DAMAGED CLIENT TO

DISCOVER THE FACT HIMSELF AND TO SEEK OUT A COMPETENT LAWYER

TO REPLACE THE POOR ONE AND THE POOR SERVICE THAT HE OR SHE HAS

PREVIOUSLY RECEIVED, IN ESSENCE, I BELIEVE, IT IS NOT

SUFFICIENT TO RELY ON THE ECONOMIC MARKETPLACE AS THE MEANS

TO INSURE THAT LAWYERS PROVIDE GOOD SERVICE, STAY UP-TO-DATE,

AND RENDER COMPETENT LEGAL COUNSEL. AN EVEN GREATER DIFFICULTY

IN RELIANCE ON SUCH A SYSTEM IS ENCOUNTERED WITH THE LITERALLY

THOUSANDS OF LAWYERS WHO HAVE LITTLE OR NO CLIENT CONTACT,

SUCH AS HOUSE COUNSEL, GOVERNMENT LAWYERS, LAW PROFESSORS,

AND THOSE WHO ARE MORE INVOLVED WITH A BUSINESS CAREER THAN

THE LAW.

I SUGGEST THAT THE ORGANIZED BAR SHOULD ESTABLISH

-6-

PROCEDURES WHEREBY ALL ATTORNEYS, IN ORDER TO MAINTAIN THEIR

LICENSE -- THE PRIVILEGE TO PRACTICE LAW -- DEMONSTRATE TO

THEIR PEERS ON A REGULAR BASIS THEIR CONTINUING COMPETENCE

AT THE BAR. I SUGGEST THAT ALL STATES, THROUGH THEIR STATE

BAR ASSOCIATIONS, AND THAT YOU AS BAR PRESIDENTS AND LEADERS

OF THE LEGAL PROFESSION, CONSIDER NOW THE ESTABLISHMENT AND

IMPLEMENTATION OF PROGRAMS FOR THE RECERTIFICATION OF LEGAL

COMPETENCY -- OR THE COMPULSORY RE-LICENSING -- OF LAWYERS.

COMPETENCE, OF COURSE, INVOLVES SEVERAL THINGS

UNMEASURABLE, SUCH AS INTEGRITY, CHARACTER, WORK HABITS,

KNOWLEDGE, ORGANIZATION, AND SELF-DISCIPLINE. I AM

CONVINCED, HOWEVER, THAT WE CAN -- AND INDEED MUST --

-7-

DESIGN SYSTEMS ESTABLISHING, ENFORCING, AND MAINTAINING AT

LEAST MINIMUM LEVELS OF COMPETENCE NEEDED TO PROTECT THE

PUBLIC FROM THE SHODDY OR INCOMPETENT PRACTITIONER,

THERE ARE, OF COURSE, MULTIPLE POSSIBLE SOLUTIONS AND

METHODS THAT COULD BE IMPROVISED TO DEMONSTRATE CONTINUING

LAWYER COMPETENCE, PEER GROUP EVALUATION, TIED INTO SOME

SORT OF CONTINUING LEGAL EDUCATION REQUIREMENTS, SIMILAR TO

THOSE PROGRAMS NOW IN THE FORMATIVE STAGES IN KANSAS,

MINNESOTA AND CALIFORNIA, CERTAINLY MERIT THE SERIOUS

ATTENTION OF THE ORGANIZED BAR AT ALL LEVELS,. PERSONALLY

I CAN SEE NO LOGICAL POSITION WHICH CAN BE ADVANCED TO

OPPOSE A STATE REQUIREMENT THAT LAWYERS, UNDER THE

-8-

SUPERVISION OF THE ORGANIZED BAR AT THE STATE OR LOCAL LEVEL,

PERIODICALLY REFURBISH, RENEW AND UPDATE THEIR LEGAL KNOWLEDGE.

IT SEEMS TO ME THAT SUCH A MANDATORY PRACTICE SHOULD BE

INSTITUTED AT ONCE, SINCE I BELIEVE THAT IT IS CRYSTAL CLEAR

THAT VOLUNTARY CLE PROGRAMS THROUGHOUT THE NATION ARE

UTILIZED IN THE MAIN BY THOSE IN THE LEGAL PROFESSION WHO

NEED IT LEAST -- BY THE ALREADY COMPETENT LAWYERS WHO,

WITHOUT URGING, CONTINUOUSLY RENEW AND UPDATE THEIR

PROFESSIONAL KNOWLEDGE AND PROFICIENCY.

ANOTHER MOVEMENT IN THE LAW -- THAT OF REGULATED

SPECIALIZATION -- IS ALSO INEXTRICABLY TIED INTO RAISING

THE OVERALL QUALITY OF THE LEGAL PROFESSION AND THUS THE

QUALITY OF SERVICE LAWYERS GIVE THEIR CLIENTS. SPECIALIZATION --

IN MY OPINION -- CAN ONLY HELP THE PROFESSION RENDER BETTER

SERVICE TO OUR CLIENT PUBLIC -- THERE IS NO WAY IN WHICH IT

CAN HURT -- AND I APPLAUD THE CURRENT EFFORTS IN SEVERAL

STATES, SUCH AS NEW MEXICO, CALIFORNIA, ARIZONA, TEXAS AND

FLORIDA, IN PIONEERING REGULATED SPECIALTY PROCEDURES.

RECERTIFICATION AND SPECIALIZATION, IN CONJUNCTION WITH

MUCH STRONGER CONTINUING LEGAL EDUCATION REQUIREMENTS OR

THEIR EQUIVALENT WILL, I BELIEVEj ULTIMATELY UPGRADE THE

ENTIRE PROFESSION AND DISCOURAGE -- AT LEAST IN MOST CASES --

LAWYERS FROM TAKING ON PROBLEMS THEY CAN'T -- OR SHOULDN'T --

HANDLE.

-10-

QUALITY LEGAL SERVICE TO OUR CLIENT PUBLIC DOES NOT,

HOWEVER, SOLELY DEPEND ON LAWYER COMPETENCE. NOTHING IS

MORE IMPORTANT EVEN TODAY TO THE QUALITY OF OUR JUSTICE THAN

TO ATTRACT AND RETAIN THE BEST QUALIFIED -- THE MOST

COMPETENT -- MEN AND WOMEN TO THE BENCH, SINCE -- IN TRUTH --

THE FINAL QUALITY OF OUR JUSTICE IS DETERMINED BY THE

QUALITY OF OUR JUDGES.

THE AMERICAN BAR ASSOCIATION HAS WORKED FOR YEARS TO

IMPROVE THE MANNER OF SELECTING JUDGES AT BOTH STATE AND

FEDERAL LEVELS; AS WELL AS THE CONDITIONS UNDER WHICH THEY

WORKS. FOR THAT SAME REASON, IT HAS CONTINUOUSLY CHAMPIONED

THE CAUSE OF PROVIDING FAIR AND REASONABLE COMPENSATION FOR

-11-

JUDGES IN ORDER TO MAKE JUDGESHIPS ECONOMICALLY VIABLE

POSSIBILITIES TO THOSE LAWYERS WHOSE LEARNING, SKILL AND

EXPERIENCE PLACE THEM IN THE FRONT RANK OF THE PROFESSION.

THE SALARIES OF FEDERAL JUDGES HAVE BEEN FROZEN AT

$40,000 SINCE MARCH 1, 1969 -- A SEVERE INJUSTICE IN LIGHT

OF THE EVER-INCREASING COSTS AND PRICES OVER THE PAST FIVE

YEARS. DURING THAT SAME PERIOD -- AND IN SPITE OF WAGE

CONTROLS AND POSTPONEMENTS -- THE SALARY LEVEL OF GENERAL

FEDERAL EMPLOYEES HAS INCREASED BY 34 PERCENT.

IT IS OBVIOUS TO ME THAT WHAT WE PAY OUR JUDGES MUST

BE SUFFICIENT TO ATTRACT THOSE INDIVIDUALS WHO CAN PERFORM

THE MOST DIFFICULT JUDICIAL TASKS COMPETENTLY, AND WHO WILL

-12-

DO SO IN AN HONEST AND ETHICAL WAY, MINDFUL THAT THERE ARE

AND WILL CONTINUE TO BE EXCEPTIONS, I BELIEVE THAT APPOINTMENT

TO A FEDERAL JUDGESHIP AT THE PRESENT SALARY LEVEL WOULD

REPRESENT A SUBSTANTIAL SACRIFICE OF PRESENT AND FUTURE

EARNING CAPACITY FOR MANY OF THE LAWYERS WHO ARE WELL

QUALIFIED FOR THAT POSITION. WE SHOULD NO LONGER EXPECT

OUR PRESENT SITTING JUDGES WHO, IN MOST CASES, ARE OUTSTANDING

IN EVERY DEGREE, TO MAKE LIFELONG PERSONAL SACRIFICES. NOR

SHOULD WE ALLOW THE JUDICIARY TO FALL AVAILABLE IN THE

FUTURE TO THOSE WHOSE PRIVATE MEANS OR WILLINGNESS TO EARN

AT LESS THAN CAPACITY PERMITS THEM TO SERVE AT THE PRESENT

SALARY SCALE.

-13-

FOR THOSE REASONS, AT ITS OCTOBER 1973 MEETING, THE

ABA BOARD OF GOVERNORS RESOLVED TO URGE PRESIDENT NIXON

TO RECOMMEND A SUBSTANTIAL SALARY INCREASE FOR MEMBERS

OF THE FEDERAL JUDICIARY. THE BOARD FOR SIMILAR REASONS

ALSO URGED ALL STATE BAR ASSOCIATIONS TO CONDUCT CONTINUING

EXAMINATIONS OF THE ADEQUACY OF JUDICIAL COMPENSATION IN

THEIR STATES.

THE SUBJECT OF FEDERAL JUDICIAL SALARIES IS TIMELY,

SINCE PRESIDENT NIXON ON NEXT MONDAY WILL MAKE HIS OWN

RECOMMENDATIONS FOR ADJUSTMENTS IN FEDERAL JUDICIAL SALARIES

AS PART OF HIS BUDGET MESSAGE, I THEREFORE RECENTLY CALLED

UPON EACH STATE BAR PRESIDENT TO JOIN WITH ME IN VIGOROUSLY

-14-

URGING THE PRESIDENT AND CONGRESS TO SUBSTANTIALLY RAISE

THE SALARY LEVEL FOR FEDERAL JUDGES. MANY OF YOU HAVE DONE

SO -- BUT WE MUST DO MUCH MORE IF THIS IMPORTANT RESULT IS

TO BE OBTAINED. AGAIN, I URGE EACH OF YOU WHO HAS NOT

CONTACTED ALL MEMBERS OF YOUR CONGRESSIONAL DELEGATION TO

DO SO IMMEDIATELY.

AS ANOTHER MATTER, I PERSONALLY BELIEVE THAT THE DAY

HAS NOW BEEN REACHED WHEN DISCIPLINARY ACTION SHOULD BE TAKEN

AGAINST ATTORNEYS WHO FAIL TO MAINTAIN OR EXERCISE COMPETENCE

AS ATTORNEYS. CANON SIX OF THE ABA CODE OF PROFESSIONAL

RESPONSIBILITY REQUIRES LAWYERS TO REPRESENT CLIENTS

COMPETENTLY AND MANDATES THAT LAWYERS STRIVE TO BECOME

-15-

AND REMAIN PROFICIENT IN THEIR PRACTICE, IF, THEREFORE, THE

CODE MANDATES THAT LAWYERS REMAIN COMPETENT -- THEN THOSE WHO

RENDER SHODDY OR BAD SERVICE BECAUSE OF BASIC INCOMPETENCE

ARE GUILTY, IT SEEMS TO ME, OF ETHICAL MISCONDUCT. IF WE

ARE TO FACE UP TO OUR PUBLIC AND PROFESSIONAL RESPONSIBILITY,

I SUBMIT THAT GRIEVANCE COMMITTEES AND DISCIPLINARY COMMISSIONS

MUST BEGIN TO INVOLVE THEMSELVES IN DISCIPLINARY SANCTIONS

AGAINST THOSE WHO HABITUALLY GIVE BAD SERVICE TO CLIENTS.

THE ORGANIZED BAR, I FEEL, SHOULD NOT OPPOSE -- AND PERHAPS

SHOULD EVEN ENCOURAGE -- MALPRACTICE SUITS AGAINST INCOMPETENT

ATTORNEYS, ABLE LAWYERS SHOULD COME FORTH WILLINGLY TO

TESTIFY CONCERNING THE STANDARD OF CARE OF PRUDENT LAWYERS

-16-

IN ANY GIVEN SITUATION1

I AM NOT SURE THAT SUCH IS NOW

THE PREVAILING PRACTICE. IN ADDITION, STATE AND LOCAL

BAR ASSOCIATIONS MIGHT WELL LOOK INTO THE FEASIBILITY OF

ESTABLISHING COMPETENCY BOARDS TO REVIEW QUESTIONS OF

MALPRACTICE, AND IN ALL CASES IN WHICH A COMPLAINT IS

JUSTIFIED, MAKE RECOMMENDATIONS FOR RECOVERABLE SETTLEMENTS

BY THE GUILTY LAWYER -- OR, IF THAT FAILS -- FURNISH

WITNESSES FOR THE INJURED PARTY IN A MALPRACTICE/SUIT.

ON ANOTHER SUBJECT, I REPORT TO YOU THAT THE

AMERICAN BAR ASSOCIATION'S FUND FOR PUBLIC EDUCATION

CONTINUES TO GROW IN DOLLAR VOLUME AND PROGRAM DIVERSITY,

As ONE EXAMPLE OF SPECIAL INTEREST TO YOU AS STATE AND

-17-

LOCAL BAR LEADERS OF NEW DEVELOPMENTS AND EXCITING

PROGRAMS OF THE FUND, THE ASSOCIATION IS CURRENTLY

ENGAGED IN ACTIVE NEGOTIATIONS WITH A PROMINENT

NATIONAL FOUNDATION WHICH WE HOPE WILL LEAD TO THE

FUNDING OF A SUBSTANTIAL GRANT-IN-AID PROGRAM THROUGH WHICH

THE ASSOCIATION WILL ADMINISTER SUB-AWARDS OR SUB-GRANTS

TO STATE AND LOCAL BAR ASSOCIATIONS. IHE ASSOCIATION

AND THE FOUNDATION FEEL THAT SUCH A PROGRAM CAN

MATERIALLY ASSIST STATE AND LOCAL BARS BY STIMULATING

PROJECTS AT THE STATE AND LOCAL LEVELS IN AREAS SUCH AS-.

FOR INSTANCEnCORRECTIONS REFORM. NOT ONLY WOULD THE

ASSOCIATION LEND ENCOURAGEMENT, SUASION, AND MANPOWER

-18-

TO PROGRAM DEVELOPMENT AT THE STATE AND LOCAL LEVELS

AS IT HAS TRADITIONALLY DONE, BUT IN ADDITION -- FOR

THE FIRST TIME -- BACK UP ITS PROPOSALS WITH SUBSTANTIAL

INVESTMENTS OF DOLLARS. PENDING FINAL NEGOTIATIONS,

THE ASSOCIATION AND THE FOUNDATION HOPE TO HAVE A JOINT

ANNOUNCEMENT OF THIS PROGRAM IN THE NEAR FUTURE.

IN CONCLUSION, I STATE MY FERVENT BELIEF THAT THE

PUBLIC HAS THE RIGHT TO DEMAND THAT WE WHO HAVE BEEN

GRANTED THE SEMI-MONOPOLY TO SERVE AS THE MAJOR BULWARK

BETWEEN MAN AND HIS GOVERNMENT -- TO BE HIS ADVOCATE --

TO BE HIS COUNSELOR WHEN HE FACES HIS MOST SERIOUS

DECISIONS -- BE OF THE HIGHEST PROFESSIONAL QUALITY AND

WORTHY OF THE UNIQUE TRUST SO PLACED IN US,

-19-

THE TITLE OF LAWYER SHOULD BE WORN PROUDLY AS A

STAMP OF INTEGRITY, COMPETENCE AND COURAGE. THE PUBLIC

SHOULD KNOW THAT LAWYERS ARE SPECIAL MEN -- DEDICATED

TO JUSTICE AND UNIQUELY HONORED BY THE SPECIAL TRUST

PLACED IN THEM BY THE PUBLIC. MY PURPOSE IS TO

CHALLENGE YOU TO DO ALL YOU CAN TO IMPROVE OUR GREAT

PROFESSION AND TO ENHANCE OUR SERVICE TO THE PUBLIC SO

THAT WE CAN ALL PROUDLY SAY THAT EVERY LAWYER IS TRULY

AN HONORABLE AND CAPABLE PROFESSIONAL.

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 102

VOLUME VII

ADDRESS OF:

CHESTERFIELD SMITH

PRESIDENT

AMERICAN BAR ASSOCIATION

BEFORE:

SENATE JUDICIARY COMMITTEE

IN OPPOSITION TO S. 354

WASHINGTON, D. C.

DATE OF DELIVERY:

TITLE:

THURSDAY, FEBRUARY 7, 1974

STATEMENT BY CHESTERFIELD SMITH ON

THE NATIONAL NO-FAULT MOTOR VEHICLE

INSURANCE ACT

TIME:

MR. CHAIRMAN AND MEMBERS OF THE JUDICIARY COMMITTEE:

MY NAME IS CHESTERFIELD SMITH, I AM A PRACTICING

LAWYER IN LAKELAND, FLORIDA, AND PRESENTLY AM SERVING AS

PRESIDENT OF THE AMERICAN BAR ASSOCIATION,

I APPEAR TODAY TO PRESENT THE VIEWS OF THE ASSOCIATION

ON S. 354, THE NATIONAL NO-FAULT MOTOR VEHICLE INSURANCE

-ACT, FOR THE RECORD, MY STATEMENT WILL REFLECT AND UPDATE

THE OFFICIAL POLICY POSITION OF THE ASSOCIATION PRESENTED

TO THE COMMERCE COMMITTEE IN APRIL 1973 BY MY PREDECESSOR

AS PRESIDENT, MR. ROBERT W. MESERVE OF BOSTON, MASSACHUSETTS.

THE DETAILS OF OUR POSITION ALREADY ARE PART OF THE

-2-

RECORD IN THE HEARINGS OF THE COMMERCE COMMITTEE AND I

TRUST YOU ARE FAMILIAR WITH THEM. I SHALL SIMPLY NOTE

HERE THAT THE AMERICAN BAR ASSOCIATION IS COMMITTED TO

A COMPREHENSIVE PROGRAM FOR MODERNIZATION OF THE AUTOMOBILE

ACCIDENT REPARATIONS SYSTEM. WE HAVE HAD THE MATTER UNDER

CONTINUING STUDY SINCE FEBRUARY 1968 AND HAVE PUBLISHED TWO

MAJOR REPORTS WHICH INCLUDE A LONG AND DETAILED SERIES OF

-RECOMMENDATIONS FOR SPECIFIC REFORMS.

THE PRINCIPAL THRUST OF OUR RECOMMENDATIONS FOLLOWS

FROM TWO FUNDAMENTAL BELIEFS:

(1) THAT WE SHOULD NOT LIGHTLY ABANDON, OR SERIOUSLY

IMPAIR BASIC LEGAL RIGHTS GROUNDED IN THE GREAT COMMON

-3-

LAW DOCTRINE WHICH HOLDS US RESPONSIBLE FOR HARM WE MAY

DO TO OUR FELLOW MAN.

(2) THAT PROBLEMS IN THE PRESENT SYSTEM VARY WIDELY FROM

STATE TO STATE AND CAN BE CORRECTED MOST EFFECTIVELY AND

FAIRLY BY ACTION OF THE STATES.

IN KEEPING WITH THESE BASIC PRINCIPLES, THE MAJOR

PLANK IN OUR PLATFORM FOR REFORM CALLS ON THE STATES TO

"ADOPT LAWS WHICH REQUIRE THAT MINIMUM FIRST-PARTY COVERAGE

OF AT LEAST $2,000 BE INCLUDED IN ALL MOTOR VEHICLE LIABILITY

INSURANCE POLICIES" BUT THAT "THOSE LAWS SHOULD GIVE THE

INNOCENT ACCIDENT VICTIM THE OPTION TO SEEK INDEMNITY FOR

ECONOMIC LOSS FROM HIS OWN INSURER, OR IN AN ACTION IN TORT,,."

-4-

EIGHT STATES NOW HAVE ADOPTED PLANS CONSISTENT WITH

THE ASSOCIATION'S POSITION AND, AS MR. MESERVE PROMISED

THE COMMERCE COMMITTEE LAST APRIL, WE HAVE BEEN MONITORING

AS CLOSELY AS WE CAN THE DEVELOPING EXPERIENCE OF THESE

STATES, AS WELL AS THE EXPERIENCE OF THE 11 STATES WITH

"NO-FAULT" PLANS USING A MEDICAL THRESHOLD OR OTHER FORM

OF TORT EXEMPTION.

DATA FOR FINAL JUDGMENTS, OF COURSE; IS NOT YET

AVAILABLE.

BUT WE ARE PLEASED TO REPORT THAT THE DATA THUS

FAR SUSTAINS US IN OUR BELIEFS. STATE PLANS CLEARLY ARE

WORKING, AND WORKING WELL IN MOST RESPECTS, INCLUDING THOSE

WHICH PLACE NO RESTRICTION ON THE RIGHT.TO SUE IN TORT.

-5-

FOR INSTANCE, THE NEARBY STATE OF DELAWARE NOW HAS

HAD TWO YEARS' EXPERIENCE WITH A "NO-FAULT" PLAN THAT PAYS

UP TO $10,000 IN FIRST-PARTY BENEFITS BUT DOES NOT BAR

ACCESS TO,THE COURTS. RATHER, IT CONTAINS A SIMPLE

PROHIBITION AGAINST THE PLEADING OF NO-FAULT BENEFITS

IN ANY SUIT BROUGHT FOR ADDITIONAL DAMAGES. PROPONENTS

OF FEDERAL "NO-FAULT" LEGISLATION HAVE TERMED THIS AN

"ADD ON" BILL WHICH THEY CONTEND MUST RESULT IN HIGHER

PREMIUM COSTS. HOWEVER, ROBERT A. SHORT, THE INSURANCE

COMMISSIONER OF DELAWARE, HAS TERMED THE DECLINE IN THE

NUMBER OF LAW SUITS NOTHING LESS THAN "MIRACULOUS". I

AM INFORMED THAT UNDER THE DELAWARE SYSTEM, ONLY ONE

SUIT HAS BEEN TRIED, AND EVEN THAT SUIT RESULTED IN NO AWARD.

I AM TOLD THAT, IN ADDITION, COST EXPERIENCE WITH THE DELAWARE

PLAN HAS NOT RESULTED IN HIGHER PREMIUM RATES AND, IN FACT,

HAS RESULTED IN LOWER RATES IN SOME INSTANCES,

THE DELAWARE EXPERIENCE IS BY NO MEANS UNIQUE. ON

THE OPPOSITE COAST, THE STATE OF OREGON HAS IMPLEMENTED A

SIMILAR "ADD ON" PLAN THAT, ACCORDING TO OREGON INSURANCE

COMMISSIONER LESTER RAWLS, HAS RESULTED IN REDUCTIONS IN

BODILY INJURY PREMIUMS OF 5 TO 15%.

AN 18-MONTH SURVEY OF THE OREGON INSURANCE DEPARTMENT

INDICATES THAT THESE RATE REDUCTIONS HAVE BEEN ACCOMPANIED

BY A DECLINING FREQUENCY IN BODILY INJURY CLAIMS, COMMISSIONER

-7-

SHORT HAS NOTED SIMILAR RESULTS WITH THE DELAWARE PLAN.

CRITICS MAY CHOOSE TO CHALLENGE THESE COST REDUCTIONS,

POINTING TO THE FACT THAT THE OREGON-DELAWARE PLANS HAVE

LOWER BENEFIT LEVELS THAN S. 354, HOWEVER, THESE LEVELS,

WHICH WERE FELT BY THE RESPECTIVE STATES TO BE ADEQUATE

TO THE NEEDS OF THEIR CITIZENS, ARE SUFFICIENT TO COVER

100% OF THE ECONOMIC LOSSES OF 99.6% OF ALL DELAWARE

AUTOMOBILE ACCIDENT VICTIMS AND 98.5% OF ALL OREGON

VICTIMS. AND I REPEAT, INNOCENT VICTIMS IN THESE STATES

STILL HAVE ACCESS TO THE COURTS.

WE THINK THE EXPERIENCE OF THESE STATES IS PARTICULARLY

SIGNIFICANT IN LIGHT OF THE HIGHLY THEORETICAL ACTUARIAL

-8-

PROJECTIONS ON WHICH PROPONENTS OF S. 354 ARE HEAVILY

DEPENDENT IN ATTEMPTING TO JUSTIFY THE VIRTUAL ABOLITION

OF TORT LIABILITY IN THE AUTOMOBILE ACCIDENT REPARATIONS

SYSTEM.

FOR INSTANCE, THE STUDY OF MILLIMAN & ROBERTSON, INC.,

ALREADY PART OF THE JUDICIARY COMMITTEE HEARING RECORD,

PROJECTS COST INCREASES IN BOTH DELAWARE AND OREGON FOR

."ADD ON" PLANS. HOWEVER, AS WE HAVE SEEN, THE PROJECTIONS

ARE CONTRADICTED BY ACTUAL EXPERIENCE-TO DATE.

THE AUTHORS OF THE MILLIMAN & ROBERTSON STUDY, IN

AN EXTRAORDINARY LIST OF CAVEATS ACCOMPANYING THEIR REPORT,

ADMIT THEIR PROJECTIONS ARE "SUBJECT TO A HIGH DEGREE OF

-9-

UNCERTAINTY"

THIS OPINION, WHEN CONSIDERED ALONG WITH

THE DEVELOPING DELAWARE-OREGON EXPERIENCE, IS ONE WITH

WHICH WE MUST AGREE.

WE ALSO SHOULD NOTE THAT THESE PROJECTIONS, AS

UNCERTAIN AS THEIR AUTHORS HAD THOUGHT THEM TO BE, WERE

MADE BEFORE THE NATION'S DRIVING HABITS, AND THUS THE

ACCIDENT RATE AND INCIDENCE OF INJURY, WERE RADICALLY

CHANGED BY THE ENERGY CRISIS.

ONE DOES NOT HAVE TO BE AN ACTUARIAL EXPERT TO

CONCLUDE FROM THIS THAT WE DO NOT HAVE THE DATA ON WHICH

TO BASE INFORMED PUBLIC POLICY IN MATTERS AS COMPLEX AS

THESE. IT DOES NOT MAKE SENSE, WE BELIEVE, TO LEGISLATE

-10-

WITH FINALITY AT THE NATIONAL LEVEL ON THE BASIS OF ADMITTEDLY

FAULTY PROJECTIONS WHEN HARD DATA FROM A VARIETY OF REAL

STATE EXPERIMENTS WILL BE AVAILABLE IN ANOTHER YEAR OR TWO.

OUR MONITORING OF THE STATE EXPERIENCE WITH "NO-FAULT"

REPARATIONS SYSTEMS HAS REVEALED A NUMBER OF OTHER

UNCERTAINTIES THAT NEED FURTHER EXAMINATION AND EXPERIMENTATION.

FOR INSTANCE, IMPARTIAL SCHOLARS STUDYING THE EXPERIENCE

-WITH THE MASSACHUSETTS AND FLORIDA LAWS FOR THE COUNCIL ON

LAW-RELATED STUDIES, AN INDEPENDENT, NON-PROFIT FOUNDATION

IN CAMBRIDGE, MASSACHUSETTS, HAVE MADE THESE POINTS:

(1) THE $1,000 MEDICAL THRESHOLD OF THE FLORIDA PLAN HAS

LED TO SOME COLLUSION, PARTICULARLY IN THE METROPOLITAN

-11-

AREA OF SOUTHERN FLORIDA, TO ENABLE VICTIMS WITH MINOR

INJURIES TO SURPASS THE THRESHOLD AND THUS QUALIFY FOR A

TORT ACTION. HOWEVER, MASSACHUSETTS, WITH A $500 MEDICAL

THRESHOLD, HAS NOT EXPERIENCED THE PROBLEM TO THE SAME

EXTENT, STUDY OF THE EXPERIENCE OF THESE STATES IS

EXPECTED TO PROVIDE DATA OF VALUE TO OTHER STATES WHICH

HAVE ENACTED, OR ARE NOW CONTEMPLATING, SIMILAR LEGISLATION,

(2) THERE IS NEED FOR A MASSIVE EDUCATION CAMPAIGN IF THE

PUBLIC IS TO ADEQUATELY UNDERSTAND THE COMPLEXITIES OF

"NO-FAULT" INSURANCE, INCLUDING NEW TYPES OF COVERAGES

AND DEDUCTIBLES. UNTIL SUCH A CAMPAIGN IS UNDERTAKEN, IT

IS UNREALISTIC TO ASSUME THAT THE AMERICAN PUBLIC UNDERSTANDS

-12-

THE ISSUES OR HAS INTELLIGENTLY ENDORSED REFORM BY FEDERAL

LEGISLATION.

PRESENTLY, 19 STATES HAVE ENACTED SOME FORM OF "NO-FAULT"

LEGISLATION, AND OVER -HALF OF THE REMAINING STATES HAVE

CARRYOVER BILLS FROM 1973 BEFORE THEIR LEGISLATURES FOR

EARLY CONSIDERATION IN THEIR 19711 LEGISLATIVE SESSIONS.

THE BILLS ENACTED TO DATE PROVIDE COVERAGE FOR APPROXIMATELY

-42% OF THE AMERICAN POPULATION. THE SIGNIFICANT INCREASE

IN STATE "NO-FAULT" ACTIVITY DURING 1973 IS ANTICIPATED BY

ALL TO CARRY OVER INTO 1974, AND IT IS FELT THAT SIX TO

TWELVE STATES WILL ENACT PLANS DURING THIS YEAR.

THE

CATALYSTS FOR THIS RECENT SPURT OF ACTIVITY ARE MANY,

-13-

MANY IN THE INSURANCE INDUSTRY ARE PUSHING "NO-FAULT", EVEN

THE ONE TRADE ASSOCIATION ACTIVELY BACKING S. 354 HAS MADE

IT CLEAR THAT IT DOES NOT OPPOSE STATE "NO-FAULT" ACTION1

MOST STATE AND LOCAL BAR ASSOCIATIONS NOW SUPPORT SOME KIND

OF "NO-FAULT" REFORM, CRITICISM THAT WAS OFTEN LEVELED AT

THE LARGER STATES, CHARGING THEM WITH INEXCUSABLE INACTION,

HAS BEEN LESSENED AS A RESULT OF THE ENACTMENT OF THE NEW

-YORK STATE PLAN, WHICH JUST BECAME EFFECTIVE. PROPONENTS

OF S. 354 WOULD DO WELL TO TAKE NOTE OF MICHIGAN'S PLAN,

AS IT PROVIDES A "NO-FAULT" SYSTEM VERY SIMILAR TO THAT OF

S, 354, THE ARRAY OF LEGISLATION COULD NOT BE MORE DIVERSE,

NOR COULD A BETTER LABORATORY FOR EXPERIMENTATION BE DEVISED.

-14-

THESE REALITIES NOW MORE THAN EVER INVITE STATE

EXPERIMENTATION TO RESOLVE THE MANY UNCERTAINTIES OF

THE "NO-FAULT" CONTROVERSY, THOSE STATES HAVING ALREADY

IMPLEMENTED SUCH LEGISLATION REPORT THAT THEIR PLANS ARE

TAKING THE SMALL CLAIMS OUT OF THE COURT SYSTEM WHILE

ASSURING ADEQUATE COMPENSATION FOR THE MEDICAL AND

ECONOMIC LOSSES OF AUTOMOBILE ACCIDENT VICTIMS WITH BOTH

-MINOR AND SERIOUS INJURIES, GENERALLY, THE PLANS HAVE

RESULTED IN NEEDED REFORM, AGAINST THIS BACKGROUND, THE

AMERICAN BAR ASSOCIATION HAS CONFIDENTLY STRENGTHENED ITS

COMMITMENT TO STATE EXPERIMENTATION FOR THE EVOLUTION OF

"NO-FAULT" AND HAS REMAINED FIRM IN ITS CONVICTION THAT

-15-

THE DATA ON STATE EXPERIENCE THUS FAR AVAILABLE HAS FAR

FROM ESTABLISHED THE NEED FOR TORT RESTRICTIONS IN "NO-FAULT"

REFORM.

WE DO NOT CONTEND, OF COURSE, THAT THIS PRELIMINARY DATA

IS CONCLUSIVE OR THAT SIMILAR RESULTS WOULD BE OBTAINED IN

EVERY STATE ADOPTING THE OREGON-DELAWARE APPROACH. BUT WE

STILL ARE CONVINCED THAT THE BURDEN OF PROOF REMAINS ON

-THOSE WHO WOULD REPLACE THESE AND OTHER PROMISING STATE

EXPERIMENTS WITH THE UNTESTED REMEDIES OF S. 354,

WE ARE GRATEFUL FOR THIS OPPORTUNITY TO PRESENT OUR

VIEWS AND NOW, IF THIS COMMITTEE WISHES, I WILL DO MY BEST

TO ANSWER ANY QUESTIONS YOU MAY HAVE ,.....1

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 103

VOLUME VII

ADDRESS OF:

CHESTERFIELD SMITH

PRESIDENT

AMERICAN BAR ASSOCIATION

BEFORE:

FIFTH ANNUAL BANQUET BROTHERHOOD

AWARDS DINNER -- TAMPA BAY CHAPTER --

NATIONAL CONFERENCE OF CHRISTIANS

AND JEWS

GRAND BALLROOM

INTERNATIONAL INN

TAMPA, FLORIDA

DATE OF DELIVERY:

TITLE :

TUESDAY, MARCH 12, 1974

7:00 P.M.

OPPORTUNITIES FOR POLITICAL
AND GOVERNMENTAL IMPROVEMENTS

20 MINUTES

TIME:

- 1 -

THE PERSONAL, POLITICAL, GOVERNMENTAL AND SOCIETAL TRAGEDIES

OF THE PAST ONE AND A HALF YEARS ULTIMATELY WILL HAVE A SALUTORY

EFFECT ON AMERICAN LIFE, OR SO I NOW BELIEVE. IT SEEMS TO ME

THAT THE REVELATIONS OF CORRUPTION, PERFIDITY, AND THE MISUSE -

AND ABUSE OF POWER -- WHETHER ACTUAL, IMAGINED, OR MANUFACTURED

HAVE NEVERTHELESS LAID BARE SERIOUS IMPERFECTIONS IN OUR GOVERN-

MENTAL, POLITICAL, AND SOCIAL PROCESSES. FORTUNATELY, IN A

NATION SUCH AS OURS, GOVERNED BY LAWS, OUR DESTINY AS A COUNTRY

IS NOT TIED INEXTRICABLY TO THE PERSONAL DESTINIES, FORTUNES, OR

MISFORTUNES OF ANY INDIVIDUALS OUR LEADERS OR RULERS OR FAVORED

POLICY-MAKERS. IT IS BECAUSE THAT IS TRUE THAT THE PRESENT

GOVERNMENTAL AND POLITICAL CRISIS, WHICH IN MOST COUNTRIES WOULD

HAVE TOPPLED GOVERNMENTS CAUSED A REVOLUTION OR AT LEAST GIVEN

RISE TO SEVERE GOVERNMENTAL OPPRESSION -- HAS INSTEAD -- HERE --

AND NOW CREATED WHAT I BELIEVE TO BE A CLIMATE FOR REPAIR AND

REFORM.

I HAVE BECOME FIRMLY CONVINCED THAT THE ENTIRE SCENARIO

OF WATERGATE -- WHICH ADMITTEDLY AND REGRETTABLY IS FAR FROM ITS

CONCLUSION -- MAY WELL PROVE TO BE A HISTORICAL WATERSHED FOR

PUBLIC DECENCY AND GOOD GOVERNMENT. I SUGGEST THAT THE DIS-

CLOSURES THE RUDE AWAKENINGS TO JUST WHAT WAS GOING ON MIGHT

HAVE DERAILED A HERETOFORE INCESSANT AND IRRESISTIBLE MARCH TO

AN ORWELLIAN 1984 IN STURDY AMERICA. BUT NOW BIG BROTHER MIGHT

NEVER COME OR AT LEAST NOT UNTIL THE MEMORY OF MAN HAS DIMMED.

- 2 -

THERE ARE SIGNS ALL AROUND US THAT OUR DEMOCRATIC SYSTEM OF

SELFLESS EXAMINATION AND PROBLEM-SOLVING IS AGAIN AT WORK, OR AT

LEAST CRANKING UP. OUR FREE NEWS MEDIA DAILY HAS BEEN LAYING OUT

THE FACTS TO THE PUBLIC. INVESTIGATIVE REPORTING HAS NEVER

BEFORE RISEN TO THE HEIGHTS OF PUBLIC ESTEEM WHICH IT NOW QUITE

PROPERLY ENJOYS. PRIMARILY BECAUSE OF THE MAGNIFICENT WORK OF

THE MEDIA, THE CLOAKS OF SECRECY AND DECEPTION WOVE OVER THE

FABRIC OF GOVERNMENT BY OUR HIGHEST PUBLIC OFFICIALS HAVE BEEN

YANKED AWAY, AND THE CLEANSING SUNSHINE OF TRUTH IS WORKING AT

FULL BLAST TO EXPOSE THE WOUNDS AND THE CANCERS IN OUR BODY

POLITIC.

SO I FOR ONE, AM CONVINCED THAT WATERGATE IS FAST BECOMING

A CATALYSING FACTOR FOR POLITICAL REFORM. AT ALL LEVELS OF

GOVERNMENT -- LOCAL, STATE AND FEDERAL -- AND IN ALL SECTORS OF

THE PRIVATE COMMUNITY -- THERE ARE STRONG MOVEMENTS FOR IMPROVE-

MENTS IN OUR EXISTING METHODS OF SELECTING AND ELECTING PUBLIC

OFFICIALS, EXECUTIVE, LEGISLATIVE AND JUDICIAL AND IN OUR

METHODS FOR HOLDING THOSE OFFICIALS -- ONCE ELECTED -- ACCOUNTABLE

TO THE ELECTORATE. THE HISTORICAL SIGNIFICANCE OF THIS TRAGIC

EPISODE OF 1972 -- IT SEEMS TO ME -- WILL ULTIMATELY LIE IN THE

POSITIVE REFORMS IT ENGENDERED, RATHER THAN THE ULTIMATE DETER-

MINATION OF GUILT OR INNOCENCE OF 'ANY SPECIFIC INDIVIDUALS. I

BELIEVE THAT WILL BE SO REGARDLESS. OF WHETHER PRESIDENT NIXON

HIMSELF ULTIMATELY IS OR IS NOT IMPEACHED.

- 3 -

WHILE MANY PERVASIVE EVILS HAVE BEEN UNCOVERED, TWO SIGNIFI-

CANT AREAS WHICH HAVE BEEN LURIDLY AND CONCLUSIVELY EXPOSED AS

WASTELANDS OF CORRUPTION AND INATTENTION AT LEAST TO MY OWN

SATISFACTION INVOLVED FIRST POLITICAL CAMPAIGN PRACTICES AND

SECOND THE USE OF GOVERNMENTAL SECRECY AND POWER.

THE CAMPAIGN PRACTICES CONNECTED WITH THE 1972 PRESIDENTIAL

ELECTION HAVE BEEN MORE THAN SUFFICIENTLY DETAILED AND I CANNOT

ADD TO YOUR KNOWLEDGE. THE "DIRTY TRICKS", ILLEGAL CONTRIBUTIONS,

BURGLARIES, INFLUENCE PEDDLING, AND PAY-OFFS HAVE BEEN NOW WELL

DOCUMENTED IN GOVERNMENTAL TRIBUNALS AND IF YOU ARE NOT NOW

REPULSED, CHAGRINED AND DISGUSTED WITH WHAT HAPPENED, YOU ARE

TOLERANT INDEED TOLERANT TO A POINT BEYOND MY OWN COMPREHENSION.

THE FACT THAT THE 1972 CAMPAIGN WAS EVOLUTIONARY THAT FACT THAT

IT WAS THE ALMOST INEVITABLE CONSEQUENCE OF A LONG-DEVELOPING

HORROR STORY DOES NOT MITIGATE ITS MALEVOLENCE. THE ONE

GRATIFYING ASPECT OF THE WHOLE MESS IS THAT THE PEOPLE AS A WHOLE

HAVE BEEN SHOCKED AND HORRIFIED TO A POINT NEVER BEFORE EXPERIENCED

IN THIS COUNTRY BY THE TACTICS EMPLOYED BY THOSE SEEKING TO ELECT

OUR LEADERS AND EVEN BY THE LEADERS THEMSELVES.

BUT OF ALMOST EQUAL IMPORTANCE, ARE THE REVELATIONS CON-

CERNING THE USES AND ABUSES OF GOVERNMENTAL POWER AND GOVERN-

MENTAL SECRECY THAT HAVE SURFACED IN THIS AWFUL MESS, AND IN THIS

INSTANCE, THE PUBLIC HAS NOT SEEMED TO CARE OR EVEN TO COMPREHEND.

AS EXAMPLES, I POINT TO: THE POLITICAL SURVEILLANCE UPON PRIVATE

INDIVIDUALS BY THE CIA; THE FBI; AND THE "PLUMBERS"; THE

- 4 -

EXISTENCE OF INDIVIDUAL DOSSIERS ON PROMINENT AMERICANS, CHOCK

FULL OF PERSONAL AND EMBARRASSING, YET OFTEN INCONSEQUENTIAL,

DATA; THE OUTRIGHT USE OF THE MILITARY INTELLIGENCE, IF THOSE

ARE NOT CONTRADICTORY TERMS, TO SPY ON CIVILIAN ORGANIZATIONS;

INTER-AGENCY SPYING AND BUGGING BY ONE PART OF THE EXECUTIVE

BRANCH AGAINST ANOTHER PART; FALSE "PUBLIC RELATIONS" STATEMENTS

BY THE GOVERNMENT AT ALL LEVELS, CONCERNING MATTERS OF SUCH

DISPARATE IMPORTANCE AS THE BOMBING OF CAMBODIA AND THE WHERE-

ABOUTS OF MARTHA MITCHELL; ENEMIES LISTS WHICH IS A TERM HARD TO

DEFINE BUT WHICH SEEMS TO COVER ALL OF THOSE OF DIFFERING POLITICAL

PARTIES OR DIFFERING POLITICAL PERSUASIONS WHO ARE NOT BLIND

FOLLOWERS OF THE LEADER; THE GROWING USE OF COMPUTERS AND DATA

STORAGE TECHNIQUES TO COMPILE MASSIVE INFORMATION OF INCIDENTAL

PROPORTIONS ON INDIVIDUALS THROUGHOUT SOCIETY, AND THE POLITICAL

USE OF FEDERAL AGENCIES, SUCH AS THE INTERNAL REVENUE SERVICE,

THE FBI, THE FEDERAL TRADE COMMISSION, AND THE ANTI-TRUST DIVISION

OF THE DEPARTMENT OF JUSTICE, TO HARASS OR TO REWARD PRIVATE

PERSONS AND GROUPS.

THERE ARE NOW, OF COURSE, BEFORE THE CONGRESS MULTIPLE

PIECES OF PROPOSED LEGISLATION DESIGNED BY ITS PROPONENTS TO CURE

THE ILLS AND THEN SOME OF OUR PRESENT POLITICAL PROCESSES. THESE

BILLS RELATING TO ELECTION CAMPAIGNS ARE USUALLY AIMED AT THE

SOURCE OF MOST OF THE PROBLEM -- MONEY. FOR THE FIRST TIME IN

OUR NATION'S HISTORY, PUBLIC FINANCING OF FEDERAL PRESIDENTIAL

CAMPAIGNS IS A REALITY AND ITS EXTENSION TO OTHER POLITICAL

CAMPAIGNS IS A REAL POSSIBILITY. ALREADY, THE "TAX CHECK-OFF"

- 5 -

ALLOWS EACH AMERICAN TAXPAYER, AT NO ADDITIONAL EXPENSE, TO

DESIGNATE, MERELY BY MARKING A BOX ON THE FRONT OF THE INCOME TAX

FORM, ONE DOLLAR OF HIS TAXES TO FINANCE THE NEXT PRESIDENTIAL

ELECTION. AS AN ALTERNATIVE, AN OBSOLUTE TAX CREDIT ON THE

FEDERAL INCOME TAX DUE OF TWELVE AND ONE-HALF DOLLARS PER

PERSON IS NOW ALLOWED FOR POLITICAL CONTRIBUTIONS OF ANY KIND.

THESE EFFORTS ARE DESIGNED TO DISCOURAGE THE NECESSITY FOR RELYING

ON HUGE CORPORATE OR INDIVIDUAL CONTRIBUTIONS, AND IF THEY ARE

WIDELY UTILIZED BY THE AVERAGE CITIZEN, THEY TRULY WILL HAVE BEEN

A MEANINGFUL FIRST STEP. PROPOSALS FOR CEILINGS ON CAMPAIGN

EXPENDITURES, FOR DISCLOSURE OF THE NAMES OF ALL CONTRIBUTORS,

AND FOR LIMITING THE AMOUNTS OF DONATIONS ARE ALSO UNDER SERIOUS

CONSIDERATION BY THE CONGRESS. PRESIDENT NIXON HIMSELF HAS NOW

MADE SOME WORTHWHILE PROPOSALS. MOST REFORM BILLS FOR FEDERAL

ELECTIONS HAVE PROVISIONS DESIGNATING SPECIFIC PROCEDURES FOR

COLLECTION AND DISBURSEMENT OF CAMPAIGN FUNDS AND BETTER METHODS

FOR INSURING COMPLIANCE. FOR THOSE OF US WHO HAVE LIVED IN

FLORIDA WHERE SUCH RULES HAVE BEEN IN FORCE FOR MORE THAN TWENTY

YEARS, IT IS VERY DIFFICULT TO UNDERSTAND WHY THESE CURRENT

EFFORTS, WHICH ARE MERELY SUPPLEMENTARY TO THE FEDERAL LAWS NOW

IN FORCE WHICH PROVED SO INEFFECTUAL IN THIS LAST NATIONAL

ELECTION, ARE MEETING SUBSTANTIAL OPPOSITION. IT SEEMS TO ME

THAT EVERY AMERICAN CITIZEN WHO TRULY BELIEVES THAT OURS IS A

GOVERNMENT OF, BY, AND FOR THE PEOPLE SHOULD DEMAND THEIR

IMMEDIATE ENACTMENT INTO LAW.

- 6 -

THE AMERICAN BAR ASSOCIATION, TO PROVIDE INPUT FROM THE LEGAL

PROFESSION INTO THESE DELIBERATIONS, CREATED LAST AUGUST A SPECIAL

COMMITTEE ON CAMPAIGN REFORM. THIS COMMITTEE, CHAIRED BY A WELL-

KNOWN FLORIDIAN, SANDY D'ALEMBERTE OF MIAMI, IS AT PRESENT

STUDYING ALL THE PROPOSALS I HAVE JUST MENTIONED AND MORE, AND

IT IS MY HOPE THAT IT WILL IN A SUBSTANTIAL WAY PROVIDE INPUT

INTO THE VARIOUS CONGRESSIONAL COMMITTEES CONSIDERING THE

PROPOSALS. IN ADDITION, THE COMMITTEE IS STUDYING TOPICS SUCH AS

VOTER REGISTRATION PROCEDURES -- SPECIFICALLY THE PROPOSAL NOW

BEFORE CONGRESS FOR POSTCARD REGISTRATION IN ALL FEDERAL ELECTIONS -

AND IN ADDITION FINANCIAL DISCLOSURE PROCEDURES FOR ALL FEDERAL

OFFICEHOLDERS. ON ANOTHER FRONT, IT IS WORKING HARD TO ABOLISH THE

ELECTORAL COLLEGE SO AS TO PROVIDE FOR THE DIRECT ELECTION OF THE

PRESIDENT. IT IS ALSO LOOKING INTO WAYS AND MEANS TO REVISE THE

METHODS WHEREBY WE SELECT OUR VICE-PRESIDENTS.

CERTAINLY, ALL AMERICANS SHOULD FEEL ABSOLUTELY COMPELLED TO

MAKE THEIR VIEWPOINTS KNOWN ON THESE ISSUES TO THEIR CONGRESSMEN

AND TO THEIR SENATORS AND TO PETITION THEM FOR OR AGAINST THE

ELECTION REFORM PROPOSALS WITH WHICH THEY AGREE OR DISAGREE.

THE USE AND MISUSE OF GOVERNMENTAL SECRECY AND POWER IS ALSO

NOW GARNERING MUCH CONGRESSIONAL ATTENTION. PRESENTLY BEFORE

CONGRESS IS A FEDERAL MODEL OF FLORIDA'S "GOVERNMENT IN THE

SUNSHINE" LAW, SPONSORED BY SENATOR LAWTON CHILES. THE BILL IS

BEING DEBATED STRENUOUSLY AMONG THOSE INTERESTED IN THE FEDERAL

- 7 -

REGULATORY AGENCIES BECAUSE OF THE PROFOUND EFFECT IT WILL HAVE ON

EXISTING GOVERNMENTAL PRACTICES. IN MY OWN JUDGEMENT, MANY WHO

FEAR IT DO SO SIMPLY BECAUSE THEY DO NOT UNDERSTAND IT. I PREDICT

THAT SOME TYPE OF "SUNSHINE" LEGISLATION WILL ULTIMATELY BE ENACTED

INTO FEDERAL LAW, BUT IT WILL BE DONE ONLY AFTER A LONG AND TOUGH

FIGHT. WITHOUT RESERVATION, I PERSONALLY FAVOR GOVERNMENT IN THE

SUNSHINE AT THE FEDERAL LEVEL IN ALL INSTANCES WHERE LEGITIMATE

NATIONAL SECURITY INTERESTS OF THE PEOPLE WILL NOT BE HARMED AND

I BELIEVE THAT THOSE INSTANCES WILL BE FAR FEWER IN NUMBER THAN IS

NOW BEING CLAIMED. CITIZENS HAVE AN ABSOLUTE RIGHT -- IT SEEMS TO

ME -- TO KNOW ALL THAT IS GOING ON IN THEIR GOVERNMENT AND TO HAVE

ACCESS TO ALL INFORMATION UPON WHICH TO BASE INFORMED DECISIONS.

THE FIRST AMENDMENT BY THE EVOLUTIONARY PROCESS OUR NATION FOLLOWS

IN CONSTITUTIONAL INTERPRETATION CERTAINLY NOW MEANS THAT OUR

PEOPLE HAVE AN OVERRIDING RIGHT TO KNOW OF GOVERNMENTAL ACTIONS -

IT OF COURSE IS IMPLEMENTED BY PRESCRIBING GOVERNMENTAL RESTRAINT

ON MEDIA ACTION AND THE PUBLIC MAY ALWAYS BE ZEALOUS IN PROTECT-

ING THIS MOST PRECIOUS OF OUR RIGHTS.

THE WHOLE MATTER OF SECRECY AND DATA COLLECTION ON INDIVIDUALS

AND THE RESULTANT INTERFERENCE WITH THE PRIVATE LIVES OF CITIZENS

IS RECEIVING INCREASED ATTENTION BY THE CONGRESS, BY PRIVATE

INDIVIDUALS, AND BY MULTIPLE ORGANIZED PUBLIC INTEREST GROUPS,

INCLUDING AFFIRMATIVE AND ACTIVE SUPPORT FROM SUCH NORMALLY

DISCORDANT SOURCES AS SENATOR SAM ERVIN, PRESIDENT RICHARD NIXON,

JOHN GARDNER OF COMMON CAUSE AND ATTORNEY GENERAL BILL SAXBE.

- 8 -

THE WHOLE SPECTRE OF GOVERNMENTAL OPPRESSION RISES TO

MONUMENTAL PROPORTIONS WHEN ONE CONSIDERS THAT THERE ARE NOW OVER

750 COMPUTER DATA STORAGE SYSTEMS IN THE DISTRICT OF COLUMBIA

COMPILING ALL KINDS OF INFORMATION ON ALL SORTS OF CITIZENS.

COUPLE THIS SITUATION WITH THE REALIZATION THAT STATE AND LOCAL

GOVERNMENTS AND THE PRIVATE BUSINESS COMMUNITY, THROUGH CREDIT

AGENCIES, INSURANCE SYSTEMS, SALES OUTLETS, AND THE LIKE, HAVE

THOUSANDS OF ADDITIONAL SOFTWARE SYSTEMS EASILY CAPABLE OF BEING

INTERFACED INTO THE CENTRAL DATA BANK AT THE FEDERAL LEVEL, AND

I SUGGEST WE HAVE A VERY FRIGHTENING SITUATION INDEED, ONE

COULD SAY THAT PRIVACY IS NOW AVAILABLE ONLY AT CLOSE RANGE AND

NEVER FROM A DISTANCE.

THERE IS A NATIONAL CRIME INFORMATION CENTER, MANNED BY THE

FBI IN WASHINGTON, D.C. WHICH IS IN THE PROCESS OF TYING INTO ALL

STATE CRIMINAL CONTROL SYSTEMS. WHILE CRIME PREVENTION IS CERTAINLY

A LAUDABLE AND WORTHWHILE GOAL, THE CHANCES OF ABUSES OF THESE

SYSTEMS SEEM TO ME TO BE APPALLING. FRANKLY, I AM VERY PLEASED

THAT SEVERAL STATES HAVE BEEN MOST RELUCTANT TO JOIN THIS CENTRAL

EFFORT. OF CONCERN, MOST SYSTEMS JUST AT THE CRIME LEVEL NATIONAL,

STATE AND LOCAL, MAKE NO DIFFERENTIATION BETWEEN ARRESTS AND CON-

VICTIONS AND ARRESTS AND ACQUITTALS, OR DROPPED CHARGES. ARREST

RECORDS ARE READILY AVAILABLE AND ALWAYS PRESENT IN THE MACHINES

TO BE USED AGAINST INDIVIDUALS, REGARDLESS OF THE ORIGINAL MERITS

OF THE ACCUSATION. THIS IS PATENTLY AGAINST -- OR $0 I BELIEVE --

OUR TRADITIONAL PRESUMPTIONS OF INNOCENCE AND FAIR PLAY, ESPECIALLY

WHEN THERE IS NO EFFECTIVE REGULATION BY ANY OVERSIGHT BODY TO

- 9 -

SUPERVISE WHAT TYPES OF MATERIAL ARE COLLECTED, WHO HAS ACCESS

TO IT, AND HOW THE INFORMATION IS USED. TECHNICAL ADVANCES ARE

WONDERFUL, BUT THEY MUST BE USED FOR THE PUBLIC GOOD WITH DUE

REGARD TO THE FACT THAT THE OPERATORS OF NEW MACHINES ARE INDIVI-

DUALS WHO MAY BE GOOD OR BAD AND WHO MAY HAVE TARGETS AND GOALS

DIFFERING IN CONCEPT FROM THE INDIVIDUAL RIGHTS SET FORTH IN OUR

CONSTITUTION.

I WILL GO SO FAR AS TO STATE THAT IT SEEMS TO ME THAT EACH

PERSON HAS A PROPRIETARY RIGHT IN HIS OWN PERSONAL INFORMATION

AND THAT SOME SORTS OF INFORMATION SHOULD NEVER BE ALLOWED TO BE

TRANSFERRED TO ANYONE WITHOUT THE INDIVIDUAL'S APPROVAL. IN ALL

CASES, AND IN ALL INSTANCES, I VERY STRONGLY FEEL THAT EACH PERSON

SHOULD BE ALLOWED TO KNOW EXACTLY WHAT SORT OF INFORMATION IS

STORED ON HIM IN A COMPUTER IN ANY PLACE AT ALL TIMES, AND THAT

HE OR SHE SHOULD HAVE THE RIGHT TO SUBMIT CONFLICTING OR CONTRA-

DICTORY DATA FOR EVALUATION BY ANYONE WHO PULLS IT FROM THE COMPUTER

FOR USE AFFECTING HIM OR HER. SUCH DATA SYSTEMS SHOULD AND MUST

MEET STANDARDS OF DUE PROCESS, EQUAL PROTECTION, AND INDIVIDUAL

FAIRNESS A FAILURE TO DO SO CANNOT FURTHER IN THE LONG-RUN ANY

LEGITIMATE INTEREST OF SOCIETY.

PERIODIC AUDITS BY AN OVERSIGHT BODY OF INDEPENDENT AND

CONCERNED OFFICIALS IS AN ESSENTIAL PREREQUISITE TO ANY DATA

COLLECTION SYSTEM. THE DILEMMA WE FACE IN EVALUATING INDIVIDUAL

DATA COLLECTION CENTERS AROUND THE IDEA THAT SINCE INDIVIDUALS

ARE MORE IMPORTANT THAN INSTITUTIONS, INSTITUTIONS SHOULD NOT

INTERFERE WITH PRIVATE LIVES ANY MORE THAN NECESSARY. LEGISLATION

-10-

IS NOW BEFORE THE CONGRESS TO RESOLVE THIS EXISTING DICHOTOMY

AND I AM PLEASED THAT THIS EFFORT TO PROVIDE THOSE ESSENTIAL SAFE-

GUARDS IS RECEIVING NON-PARTISAN SUPPORT. UNQUESTIONABLY, I THINK

THAT THESE PROPOSALS SHOULD GET DILIGENT ATTENTION FROM ALL OF US.

CERTAINLY THESE DIVERSE BUT RELATED QUESTIONS WHICH I HAVE

RAISED STRIKE AT THE HEART OF OUR JUSTICE SYSTEM TOO AND IT IS FOR

THAT REASON THAT I AS A NATIONAL SPOKESMAN FOR THE LEGAL PROFESSION

FELT THE COMPULSION TO ADDRESS MYSELF TO THEM BEFORE THIS GROUP.

THE UNDERLYING THEME RUNNING THROUGHOUT THE REBUILDING, OR

RATHER THE STRENGTHENING OF OUR SYSTEM OF CONSTITUTIONAL LIBERTY,

FOCUSES ALMOST WHOLELY ON ACCOUNTABILITY. THE DIFFICULTY IS NOT

WITH POWER AS SUCH; RATHER IT IS WITH POWER THAT CANNOT BE HELD

ACCOUNTABLE TO THE ELECTORATE -- TO THE PEOPLE WHICH GOVERNMENT

AND GOVERNMENTAL OFFICIALS ARE DESIGNED TO SERVE.

IN CONCLUSION, I REITERATE MY BELIEF THAT IN OUR TROUBLED

WORLD, GOOD MOST OFTEN COMES FROM EXPERIENCING BAD. THE UMBRELLA

SERIES OF EVENTS WE NOW LUMP TOGETHER AS "WATERGATE" WAS BAD,

AND ACCORDINGLY, I BELIEVE THAT THE PRESENT ATMOSPHERE OF

SUBSTANTIAL PUBLIC CONCERN IS SUCH THAT BENEFICIAL GOVERNMENTAL

REFORMS CAN, AND ALMOST CERTAINLY WILL, BE MADE. IT IS NOT

SUFFERING WHICH CAUSES THE PEOPLE TO ARISE BECAUSE WE ARE HUMAN,

IT ALWAYS IS OUR DESIRE FOR BETTER THINGS WHICH CAUSES US TO

DEMAND GOVERNMENTAL REFORMS. IT IS MY BELIEF THAT WATERGATE AS

NEVER BEFORE HAS INSTILLED IN AMERICANS A TASTE FOR GOVERNMENT

AS IT SHOULD BE AND I FERVENTLY HOPE, AS IT WILL BE.

(THE END)

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 104

VOLUME VII

ADDRESS OF:

BEFORE:

DATE OF DELIVERY:

TITLE:

CHESTERFIELD SMITH

PRESIDENT

AMERICAN BAR ASSOCIATION

CAPITOL HILL CHAPTER OF THE

FEDERAL BAR ASSOCIATION

SENATE CAUCUS ROOM

WASHINGTON, D. C.

THURSDAY, MARCH 14, 1974

12:15 P.M.

CITIZENS COALITION FOR COURT

IMPROVEMENT: A PROPOSAL

TEN MINUTES

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TIME:

THE EQUITABLE AND EFFICIENT ADMINISTRATION OF JUSTICE

IS ESSENTIAL TO A NATION ORGANIZED UNDER, AND DEDICATED TO, THE

RULE OF LAW. YET, THE CENTRAL ELEMENTS IN THE ADMINISTRATION

OF JUSTICE IN THIS COUNTRY -- THE COURTS -- HAVE, IN THE MAIN,

BEEN NEGLECTED BY OUR CITIZENS AND, MORE SPECIFICALLY, BY THEIR

ELECTED REPRESENTATIVES: THEIR CONGRESSMEN AND THEIR STATE

LEGISLATORS. IT HAS ALMOST BECOME A CLICHE AMONG LAWYERS AND

INFORMED LAY CITIZENS THAT MOST COURTS ARE POORLY HOUSED AND

ILL EQUIPPED AND THAT COURT PERSONNEL -- AND, ESPECIALLY JUDGES --

ARE SEVERELY UNDERCOMPENSATED. UNDENIABLY, OUR COURTS, BOTH

FEDERAL AND STATE, ARE AMONG OUR LEAST SUPPORTED INSTITUTIONS.

IT IS RATHER STARTLING TO REALIZE THAT THE BUDGET FOR THE ENTIRE

FEDERAL COURT SYSTEM IS ONLY ONE-SEVENTH OF ONE PERCENT OF THE

RICI(R~r~l~rrdnS? ~n~:*i~-IL~i~i~~U~Xl~~rT*~I.~.~II*~*

ENTIRE FEDERAL BUDGET.

THIS MONUMENTAL NEGLECT HAS RESULTED IN SERIOUS

PROBLEMS IN THE OPERATION OF OUR COURTS AND, THEREFORE, IN

'THE ADMINISTRATION OF JUSTICE. BY ANYONE'S STANDARDS --

OUR COURTS ARE SIMPLY NOT MEETING PRESENT NEEDS. WHILE THE

PROBLEM IS MORE SERIOUS AT THE STATE LEVEL, PARTICULARLY IN

METROPOLITAN AREAS, IT IS JUST AS REAL AND APPARENT IN THE

FEDERAL COURTS. CROWDED COURT DOCKETS, CASE BACKLOGS, OVER-

WORKED AND HARASSED JUDGES, JUDICIAL INEFFICIENCIES, AND SLOW

MOTION JUSTICE ARE THE RULE IN MASSIVE AREAS OF THE NATION. IN

FACT, IT IS NOT THE EXCEPTION -- IT IS THE PREVALENT CONDITION.

THE RESULTING DELAYS IN THE RESOLUTION OF CIVIL DIS-

PUTES AND IN CRIMINAL TRIALS HAVE, IN MY OPINION, CONTRIBUTED

t'$'?t"r-t~Snw r~r y-~t~ :~~yi~.4 ~rbw~rrrA*A ws-r~r ~ -r

i^KVia^t*^4-g^g?P^^t'll-tB^*P^.U!g"^i1'!^"^^

LARGELY TO THE BURGEONING CRIME RATES, CRIMINAL RECIDIVISM,

AND THE OVERALL DIMINISHMENT OF PUBLIC TRUST IN GOVERNMENT NOW

PLAGUING OUR SOCIETY.

THE LEGAL PROFESSION -- THROUGH THE AMERICAN BAR

ASSOCIATION AND OTHER LEGAL GROUPS -- HAS LONG CHAMPIONED THE

CAUSE OF COURT IMPROVEMENT. WHILE WE HAVE HAD SOME EXTREMELY

SIGNIFICANT ACHIEVEMENTS, WE MUST ACKNOWLEDGE THAT WE HAVE NOT

BEEN ABLE TO SECURE OVERWHELMING PUBLIC SUPPORT FOR JUDICIAL

IMPROVEMENTS. OFTEN OUR CONCERN HAS MERELY FALLEN ON DEAF EARS

IN THE COMMUNITY, IN THE STATE LEGISLATURES, AND IN THE CONGRESS.

IT HAS, THEREFORE, BEEN ADEQUATELY DEMONSTRATED TO ME THAT

LAWYER CONCERN IS NOT ENOUGH -- THE CAUSE OF COURT IMPROVEMENT

MUST BE CONCERN AND A CAUSE FOR EVERY CITIZEN, NOT JUST ATTORNEYS.

JUSTICE IS AND ALWAYS WILL BE TOO PRECIOUS A COMMODITY TO BE

CHAMPIONED BY LAWYERS ALONE.

LAWMAKERS REACT TO THE INTERESTS OF THEIR CONSTITUENTS

AND, IN REGARD TO COURT IMPROVEMENT, THERE HAS BEEN LITTLE

ARTICULATED INTEREST IN THE JUSTICE SYSTEM EXCEPT BY LAWYERS.

THUS, COURT IMPROVEMENT LEGISLATION AND APPROPRIATIONS TRADITIONALLY

HAVE BEEN RELEGATED TO POSITIONS LOW ON CONGRESSIONAL AND STATE

LEGISLATIVE LISTS OF PRIORITIES. THIS LOW CITIZEN INTEREST STEMS -

I AM FIRMLY CONVINCED -- FROM A LACK.OF INFORMATION -- A FEELING

OF NOT KNOWING -- RATHER THAN LEGITIMATE DISINTEREST. I BELIEVE

THAT OUR CITIZENS ARE, IN THE MAIN, USUALLY UNINFORMED AS TO THE

CAUSE AND EFFECT RELATIONSHIP BETWEEN POORLY SUPPORTED AND FINANCED

COURT SYSTEMS AND THE POOR ADMINISTRATION OF JUSTICE.

IT SI FOR THESE REASONS, THEREFORE, THAT I NOW PROPOSE

THAT A CITIZENS' COALITION FOR COURT IMPROVEMENT -- COMPOSED OF

REPRESENTATIVES FROM ALL WALKS OF AMERICAN LIFE -- BE FORMED TO

ACT AS A CATALYST FOR EDUCATING AND INVOLVING OUR CITIZENS IN THE

CONSTANT FIGHT FOR COURT IMPROVEMENT AT THE FEDERAL LEVEL. I FAVOR

A SIMILAR STRUCTURE FOR CREATION IN EACH STATE, BUT THAT IS THE

PREROGATIVE OF THE STATE BAR ASSOCIATION. MY OWN RESPONSIBILITY,

AND THAT OF THE ABA, IS AT THE NATIONAL LEVEL. THIS COALITION --

I ENVISION -- WOULD -- AMONG OTHER THINGS -- BE CONCERNED WITH

LOBBYING FOR IMPROVED COURT FACILITIES, MORE ADEQUATE COURT SUPPORT

PERSONNEL AND SERVICES, IMPROVED COURT PROCEDURES, AND JUST

COMPENSATION FOR MEMBERS OF THE JUDICIARY. I AM ASKING REPRESEN-

TATIVES FROM VARIOUS GROUPS AND OCCUPATIONS TO PARTICIPATE IN A

- ~ -......rt-r~.5.~fl.

CONFERENCE IN EARLY JUNE TO DISCUSS THIS PROPOSAL. I AM FIRMLY

CONVINCED THAT SUCH AN ORGANIZATION -- WHICH WOULD BE THE FIRST

OF ITS KIND DEDICATED SOLELY TO COURT IMPROVEMENT AT THE FEDERAL

LEVEL -- CAN MATERIALLY ENHANCE THE QUALITY OF JUSTICE AND THE

ABILITY OF OUR SYSTEM TO MEET THE NEEDS OF OUR SOCIETY.

ONE OF THE REASONS WHICH CAUSED ME TO COME TO THE

CONCLUSION THAT SUCH A WIDE-BASED CITIZENS ORGANIZATION WAS

ABSOLUTELY ESSENTIAL WAS THE RECENT AND, TO ME, VERY SAD DECISION

BY CONGRESS DENYING FEDERAL JUDICIAL..PAY RAISES. JUST LAST WEEK,

THE SENATE VETOED THE PROPOSED PAY INCREASES FOR THE FEDERAL

JUDICIARY, AS WELL AS SIMILAR PAY INCREASES FOR HIGH-RANKING

GOVERNMENT EXECUTIVES AND THE CONGRESS ITSELF. THE AMERICAN BAR

ASSOCIATION HAD URGED IN THE STRONGEST TERMS THE ABSOLUTE NECESSITY

-~-rr ,, r:'r' 4rr-r~,r#rrrt~~4t~ ~~%'Jt ~ -

OF PROVIDING AN EQUITABLE SALARY ADJUSTMENT FOR MEMBERS OF CONGRESS

AND FEDERAL JUDGES. FEDERAL JUDICIAL AND CONGRESSIONAL SALARIES

HAVE BEEN FROZEN SINCE 1969 WHILE -- AS WE ALL KNOW -- THE COST

OF LIVING HAS SKYROCKETED IN THE INTERVENING YEARS. WE SPOKE OUT

IN FAVOR OF A CONGRESSIONAL PAY RAISE BECAUSE WE BELIEVED IT TO

BE RIGHT AND DESIRABLE BUT, OF COURSE, OUR SPECIAL INTEREST AND

SPECIAL COMPETENCE RELATED MORE TO JUDICIAL SALARIES.

THE SIMPLE FACT IS THAT LAWYERS WHO ARE OF THE QUALITY

TO BE FINE JUDGES ARE GENERALLY CAPABLE OF EARNING IN PRIVATE

PRACTICE FAR MORE THAN FEDERAL JUDGES ARE CURRENTLY PAID. FURTHER,

THE FINANCIAL HARDSHIP EXPERIENCED BY SUCH LAWYERS IN ACCEPTING

JUDGESHIPS IS COMPOUNDED WHEN, AFTER A PERIOD OF SEVERE INFLATION,

HIS OR HER COMPENSATION REMAINS THE SAME.

LEGISLATION ENACTED IN 1967 PROVIDES FOR A REVIEW

EVERY FOUR YEARS OF JUDICIAL, EXECUTIVE AND CONGRESSIONAL PAY.

SINCE THAT TIME, MORE THAN HALF OF THE CURRENT MEMBERS OF THE

FEDERAL JUDICIARY HAVE BEEN APPOINTED -- APPOINTED I SUGGEST --

WITH THE REASONABLE EXPECTATION THAT THIS AUTOMATIC MECHANISM

WOULD SAFEGUARD THE PURCHASING POWER OF. THEIR SALARIES FROM THE

EROSION OF INFLATION. BY DENYING THEM THIS TREATMENT, THE SENATE

LAST WEEK VOTED TO CONTINUE INTO THE INDEFINITE FUTURE A SALARY

SCALE TOO LOW TO BEGIN WITH, WHICH HAS BEEN FROZEN FOR THE PAST

FIVE YEARS, AND WHOSE REAL VALUE DIMINISHES EACH MONTH. THAT WAS

WRONG -- AND I BELIEVE THAT ULTIMATELY IT WILL ADVERSELY AFFECT

THE QUALITY OF FEDERAL JUSTICE.

IN A REAL SENSE, THE WAY IN WHICH WE TREAT OUR JUDGES

REFLECTS OUR ATTITUDE TOWARD THE FUNCTIONS THEY PERFORM. BY

DENYING THEM FAIR TREATMENT, WE ARE CASTING UNWARRANTED AND

DANGEROUS DOUBT ON OUR SUPPORT OF THE ADMINISTRATION OF JUSTICE

AND THE RULE OF LAW.

COMMUNICATIONS WHICH I RECEIVED FROM A LARGE NUMBER

OF SENATORS INDICATED THAT THEY TRULY APPRECIATED THE NECESSITY OF

RAISING JUDICIAL PAY. IN VOTING AGAINST THE PAY INCREASE, THE

SENATORS WERE APPARENTLY GUIDED NOT BY WHAT THEY FELT WAS RIGHT

FOR THE JUDICIARY, BUT WHAT APPEARED TO SATISFY THEIR OWN POLITICAL

PROBLEMS. AS POLITICIANS, SENATORS,CAN NOW TAKE CREDIT FOR TURNING

BACK THEIR OWN PROPOSED PAY INCREASES. JUDGES, HOWEVER, ARE NOT

POLITICIANS AND THE SENATE SHOULD NOT HAVE IMPOSED WHAT: .IT FOUND

TO BE POLITICALLY EXPEDIENT FOR ITS OWN MEMBERS ON THE PRINCIPAL

r,-'. -,-.^ ^ ,,p';' . --. r.T-.^., . *'. .* :- .:. 1;..--.`*...*,**-,- ,!**! . . `:.` ^ ........ ..... . ......a ,

ARCHITECTS OF JUSTICE IN THIS COUNTRY.

THE SENATORS WERE ABLE TO VOTE AGAINST FEDERAL JUDICIAL

PAY RAISES MORE EASILY, IT SEEMS TO ME, BECAUSE THERE WAS NO BROAD

BASED CITIZEN SUPPORT FOR JUST COMPENSATION INCREASES FOR THE

JUDICIARY. OUR CITIZENS JUST DID NOT KNOW AND WERE JUST NOT INVOLVED

IN THE LOBBYING EFFORT. THE ISSUE, UNDOUBTEDLY, MAY HAVE BEEN

CONFUSING -- CERTAINLY IT WAS NOT WELL ARTICULATED TO THE PUBLIC

BY THE AMERICAN BAR ASSOCIATION. IT IS MY HOPE THAT, THROUGH AN

ORGANIZATION SUCH AS THE PROPOSED CIT-IZENS' COALITION FOR COURT

IMPROVEMENT, BROAD BASED CITIZEN SUPPORT CAN BE GENERATED IN THE

FUTURE IN SUPPORT OF SIMILAR MEASURES WHICH VITALLY AFFECT THE

ADMINISTRATION OF JUSTICE AT THE FEDERAL LEVEL. I SHALL DO WHAT-

EVER I CAN TO CAUSE SUCH AN ENTITY TO COME INTO BEING AND TO HELP

IT BEGIN OPERATIONS. ONCE THAT IS DONE -- ONCE THE BABY IS BORN

AND WALKING -- I FEEL THAT IT SHOULD GO ITS OWN WAY. IT SHOULD

AS A LONG-RANGE MATTER HAVE NO CONNECTION WITH THE AMERICAN BAR

ASSOCIATION OR BE UNDER THE DOMINION OR CONTROL OF ANY OTHER

ORGANIZATION.

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 105

VOLUME VII

REMARKS OF:

BEFORE:

DATE:

TITLE:

TIME:

CHESTERFIELD SMITH, PRESIDENT
AMERICAN BAR ASSOCIATION

SPRING MEETING, AMERICAN COLLEGE
OF TRIAL LAWYERS -
BOCA RATON, FLORIDA

MONDAY, MARCH 18, 1974

FEDERAL JUDGES SALARIES

TEN MINUTES

EACH PERSON HERE TODAY KNOWS THAT THE CENTRAL

FIGURE IN THE ADMINISTRATION OF JUSTICE IN THIS COUNTRY IS

THE JUDGE. FROM PERSONAL EXPERIENCE EACH PERSON HERE

TODAY KNOWS THAT NOTHING IS MORE IMPORTANT TO THE QUALITY

OF JUSTICE THAN TO ATTRACT AND RETAIN THE BEST QUALIFIED MEN

AND WOMEN AS JUDGES FOR OUR COURTS; THAT IN TRUTH THE

QUALITY OF JUSTICE EVEN IN THIS NATION RULED BY LAW IS THE

QUALITY OF THE JUDGE.

INASMUCH AS THE LEGAL PROFESSION HAS AN ACKNOWLEDGED

I

4

DUTY TO THE PUBLIC TO DO WHATEVER IT CAN TO INSURE JUSTICE

FOR ALL CITIZENS THE AMERICAN BAR ASSOCIATION HAS WORKED

FOR YEARS TO IMPROVE THE MANNER OF SELECTING JUDGES AT BOTH

STATE AND FEDERAL LEVELS AS WELL AS THE CONDITIONS UNDER

WHICH THEY WORK. OF COURSE NO PART OF THE LEGAL PRO-

FESSION HAS A GREATER OBLIGATION OR A HIGHER DEGREE OF INTEREST

IN THAT PARTICULAR ISSUE THAN DOES THE TRIAL BAR. IT IS

FOR THAT REASON THAT THE AMERICAN COLLEGE OF TRIAL LAWYERS

AND THE INDIVIDUAL TRIAL LAWYERS WHO ARE ITS FELLOWS HAVE

CONTINUOUSLY CHAMPIONED THE CAUSE OF PROVIDING FAIR AND

REASONABLE COMPENSATION FOR JUDGES. I NOW ASK THAT YOU

IN BEHALF OF THE FEDERAL JUSTICE SYSTEM JOIN AGAIN IN THAT

BATTLE WITH THE AMERICAN BAR ASSOCIATION. ALL THAT HAS

BEEN DONE BY OUR FEDERAL JUDICIARY COMMITTEE IN ENCHANCING

THE PROFESSIONAL ENVIRONMENT OF THE TRIAL COURTS IN THE

FEDERAL SYSTEM WILL GO FOR NAUGHT UNLESS STEPS ARE TAKEN TO

MAKE A UNITED STATES DISTRICT JUDGESHIP AN ECONOMICALLY

-2-

7 --., 7 --.- ', 1-1 -- -.'

VIABLE POSSIBILITY TO A LAWYER WHOSE LEARNING SKILL AND

EXPERIENCE HAVE PLACED HER OR HIM IN THE FRONT RANK OF THE

TRIAL BAR.

THE SALARIES OF FEDERAL JUDGES HAVE BEEN FROZEN

SINCE MARCH 1, 1969. DURING THAT SAME PERIOD AND IN

SPITE OF WAGE CONTROLS AND POSTPONEMENTS THE SALARY LEVEL

OF GENERAL FEDERAL EMPLOYEES HAS INCREASED BY MORE THAN 30

PER CENT. NO ONE WHO HAS HIRED EMPLOYEES PAID TUITION -

OR BOUGHT FOOD IN THE PAST FIVE YEARS NEEDS TO BE REMINDED

OF EVER INCREASING COSTS AND PRICES. FEDERAL JUDGES HAVE

BEEN SEVERELY PENALIZED BY THE FIXED NATURE OF THEIR COMPEN-

SATION AND FOR EACH DAY THAT GOES BY WITHOUT A SALARY

ADJUSTMENT THEY WILL CONTINUE TO BE PENALIZED.

ALTHOUGH BASIC FAIRNESS SHOULD CHARACTERIZE THE

RELATION OF OUR SOCIETY TO ITS PUBLIC SERVANTS SOMETHING

EVEN MORE IMPORTANT THAN FAIRNESS TO SPECIFIC INDIVIDUALS

IS HERE INVOLVED. IN VERY GENERAL TERMS WHAT WE PAY OUR

-3-

UNITED STATES DISTRICT JUDGES IS A MEASURE OF OUR EVALUATION

OF THE FUNCTION THEY PERFORM. WE ASK OF THOSE JUDGES

THAT THEY PROVIDE SOLUTIONS TO PROBLEMS THAT ON ONE HAND -

MAY INVOLVE COMPLEX ECONOMIC INTERRELATIONSHIPS OR ON THE

OTHER THE MOST INTENSE AND BASIC OF HUMAN CONFLICTS. WE

ASK OF THOSE JUDGES THAT THEY SERVE AS THE ULTIMATE GUARDIANS

OF OUR LIBERTIES THE PROTECTOR OF OUR CONSTITUTIONAL RIGHTS.

WE ASK THEM TO PROVIDE REMEDIES FOR THOSE SITUATIONS IN

WHICH BY DEFINITION WE AND OUR SOCIETY HAVE FAILED.

IN VERY PRACTICAL TERMS WHAT WE PAY THOSE JUDGES

MUST BE SUFFICIENT TO ATTRACT THE INDIVIDUALS WHO CAN PERFORM

THESE TASKS COMPETENTLY AND WHO WILL DO SO IN AN HONEST

AND ETHICAL WAY. AT PRESENT A UNITED STATES DISTRICT

JUDGE IS PAID $40,000 A YEAR. THERE IS ALWAYS THE DANGER

OF FALSELY EQUATING FINANCIAL SUCCESS WITH PROFESSIONAL

SUCCESS. IT IS ALSO TRUE THAT FINE LAWYERS MAY BE IN A

VARIETY OF CIRCUMSTANCES BY CHOICE AND OTHERWISE. STILL -

-4-

MINDFUL THAT THERE ARE AND WILL CONTINUE TO BE EXCEPTIONS -

I AM CONVINCED OUT OF PERSONAL EXPERIENCE THAT APPOINTMENT

TO A FEDERAL JUDGESHIP AT THE PRESENT TIME WOULD REPRESENT

A SUBSTANTIAL SACRIFICE OF PRESENT AND FUTURE EARNING

CAPACITY FOR VERY MANY OF THE FINE TRIAL LAWYERS WHOM I

BELIEVE ARE WELL QUALIFIED FOR THAT POSITION.

WHY DO I CONSIDER THE SUBJECT OF JUDICIAL SALARIES

SO TIMELY THAT I MAKE IT THE SUBJECT OF MY REMARKS TO THIS

MOST PRESTIGIOUS GROUP. AT ITS OCTOBER 1973 MEETING -

THE BOARD OF GOVERNORS OF THE AMERICAN BAR ASSOCIATION FOUND

SPECIFICALLY THAT WHILE ADEQUATE COMPENSATION IS ESSENTIAL

TO ATTRACT THE BEST QUALIFIED LAWYERS TO THE JUDICIARY -

THE PRESENT RATE OF JUDICIAL COMPENSATION IS NO LONGER

COMPARABLE TO THE INCOME OF THE BEST QUALIFIED TRIAL LAWYERS.

THE BOARD THEREFORE RESOLVED TO URGE PRESIDENT NIXON TO

RECOMMEND A SUBSTANTIAL INCREASE FOR MEMBERS OF THE FEDERAL

JUDICIARY.

-5-

THE BOARD OF GOVERNORS DID NOT RECOMMEND A SPECIFIC

FIGURE AND IN TRANSMITTING ITS RESOLUTION TO PRESIDENT

NIXON I TOO MENTIONED NO AMOUNT. SPEAKING PERSONALLY -

HOWEVER AND NOT FOR THE ASSOCIATION I BELIEVE THAT AS

OF TODAY ANY SALARY FOR A FEDERAL JUDGE OF LESS THAN $60,000

IS NOT ADEQUATE.

AS ALMOST ALL OF YOU KNOW FEDERAL LEGISLATION

ENACTED IN 1967 AND VIGOROUSLY SUPPORTED AT THAT TIME BY

THE AMERICAN BAR ASSOCIATION PROVIDES FOR A REVIEW EVERY

FOUR YEARS OF JUDICIAL EXECUTIVE AND CONGRESSIONAL PAY.

SINCE 1967 WHEN THAT LEGISLATION WAS ADOPTED MORE THAN

HALF OF THE CURRENT MEMBERS OF THE FEDERAL JUDICIARY HAVE

BEEN APPOINTED APPOINTED I SUGGEST WITH THE REASONABLE

EXPECTATION THAT THIS AUTOMATIC MECHANISM WOULD SAFEGUARD

THE PURCHASING POWER OF THEIR SALARIES FROM THE EROSION OF

INFLATION. PRESIDENT NIXON RECOGNIZED THIS AND BASED

UPON A RECOMMENDATION OF THE FEDERAL COMMISSION ON EXECUTIVE -

-6-

LEGISLATIVE AND JUDICIAL SALARIES MADE LATE LAST YEAR HE

IN JANUARY TRANSMITTED TO THE CONGRESS A PROPOSAL WHICH OVER

A PERIOD OF THREE YEARS WOULD HAVE INCREASED THE COMPENSATION

OF FEDERAL JUDGES AND CONGRESSMEN AND THE HIGHER RANKING

EXECUTIVE OFFICIALS TO AN AMOUNT MUCH MORE NEARLY EQUAL IN

PURCHASING POWER TO THE COMPENSATION FIXED FOR THEM AT THE

TIME OF THE LAST SALARY ADJUSTMENT IN 1969.

SADLY THE CONGRESS ABOUT TEN DAYS AGO DENIED

EVEN THIS INADEQUATE ADJUSTMENT IN FEDERAL JUDICIAL PAY
e

INCREASES FOR THE FEDERAL JUDICIARY AS WELL AS THE SIMILAR

INCREASED PROPOSED FOR THE HIGH-RANKING GOVERNMENT EXECUTIVES

AND THE MEMBERS OF THE CONGRESS. AFTER A DEBATE CENTERED

ALMOST WHOLLY ON THE POLITICAL IMPACT OF CONGRESSIONAL

SALARIES WITH LITTLE OR NO WORDS SPOKEN IN BEHALF OF THE

FEDERAL JUDGES THE SENATE VETOED ALL PAY INCREASES. THE

AMERICAN BAR ASSOCIATION HAD URGED REPEATEDLY IN THE STRONGEST

TERMS THE DESIRABILITY OF PROVIDING AN EQUITABLE SALARY

-7-

ADJUSTMENT FOR THE MEMBERS OF CONGRESS AS WELL AS THE

FEDERAL JUDGES AND I PERSONALLY BELIEVE THAT THE CONGRESSMEN

TOO ARE ENTITLED TO MORE COMPENSATION THAN-THEY NOW RECEIVE.

FEDERAL JUDICIAL AND CONGRESSIONAL SALARIES HAVE BEEN FROZEN

SINCE 1969 WHILE AS ALL AMERICANS WELL KNOW THE COST OF

LIVING HAS SKYROCKETED. THE ASSOCIATION SPOKE OUT IN

FAVOR OF A CONGRESSIONAL PAY RAISE BECAUSE WE BELIEVED IT

TO BE RIGHT AND DESIRABLE BUT OF COURSE OUR SPECIAL

INTEREST AND SPECIAL COMPETENCE THEN AND NOW RELATED FAR

MORE TO JUDICIAL SALARIES.

THE SIMPLE FACT IS THAT THE FINANCIAL HARDSHIP

EXPERIENCED BY A GOOD TRIAL LAWYER WHO ACCEPTS APPOINTMENT

TO A JUDGESHIP IS COMPOUNDED WHEN AFTER A PERIOD OF SEVERE

INFLATION HIS OR HER COMPENSATION REMAINS THE SAME.

BY DENYING EVEN A COST-OF-LIVING ADJUSTMENT TO

FEDERAL JUDGES THE SENATE VOTED TO CONTINUE INTO THE

INDEFINITE FUTURE A SALARY SCALE TOO LOW TO BEGIN WITH -

-8-

WHICH HAS BEEN FROZEN FOR THE PAST FIVE YEARS AND WHOLE

REAL VALUE DIMINISHES EACH MONTH. THAT WAS WRONG -

AND I BELIEVE THAT ULTIMATELY IT WILL ADVERSELY AFFECT THE

QUALITY OF FEDERAL JUSTICE. IN A REAL SENSE THE WAY

IN WHICH WE TREAT OUR JUDGES REFLECTS OUR ATTITUDE TOWARD

THE FUNCTIONS THEY PERFORM. BY DENYING THEM FAIR

COMPENSATION WE ARE CASTING UNWARRANTED AND DANGEROUS

DOUBT ON OUR SUPPORT OF THE ADMINISTRATION OF JUSTICE AND

THE RULE OF LAW.

COMMUNICATIONS WHICH I RECEIVED FROM SENATORS

INDICATED THAT A GREAT MANY OF THEM DO APPRECIATE THE

DESIRABILITY OF RAISING JUDICIAL PAY. IN VOTING AGAINST

THE PAY INCREASES IT APPEARS TO ME THAT A MAJORITY OF

THE -SENATORS WERE APPARENTLY GUIDED NOT BY WHAT THEY FELT

WAS RIGHT FOR THE JUDICIARY BUT BY WHAT APPEARED TO SATISFY

THEIR OWN IMMEDIATE PERSONAL POLITICAL PROBLEMS. AS

POLITICIANS SENATORS CAN NOW TAKE CREDIT IN ELECTION

-9-

CAMPAIGNS FOR TURNING BACK THEIR OWN PROPOSED PAY INCREASES.

JUDGES HOWEVER ARE NOT POLITICIANS AND THE SENATE SHOULD

NOT HAVE IMPOSED WHAT IT FOUND TO BE POLITICALLY EXPEDIENT

FOR ITS OWN MEMBERS ON THE PRINCIPAL ARCHITECTS OF JUSTICE

IN THIS COUNTRY.

THE SENATORS WERE ABLE TO VOTE AGAINST FEDERAL

JUDICIAL PAY RAISES MORE EASILY IT SEEMS TO ME BECAUSE

THERE WAS AND IS NO BROAD BASED CITIZEN SUPPORT FOR JUST

COMPENSATION INCREASES FOR THE JUDICIARY. ONLY LAWYERS

SEEM TO KNOW AND FRANKLY ONLY A FEW OF THEM WORK FOR

HIGHER JUDICIAL SALARIES. THE AVERAGE CITIZEN JUST

DID NOT KNOW THAT IT WAS A PROBLEM. THE ISSUE UNDOUBTEDLY -

MAY HAVE BEEN LEGISLATIVELY CONFUSING CERTAINLY IT WAS NOT

WELL ARTICULATED TO THE PUBLIC BY THE AMERICAN BAR ASSOCIATION.

IT IS MY HOPE THAT IN THE FUTURE WE CAN GENERATE BROAD BASED

CITIZEN SUPPORT FOR SIMILAR MEASURES WHICH SO VITALLY AFFECT

THE ADMINISTRATION OF JUSTICE.

-10-

OUR CONCERN WITH THE ADEQUACY OF JUDICIAL SALARIES

SHOULD NOT BE INTERPRETED AS CONCERN WITH THE QUALITY OF

THOSE WHO NOW SERVE ON OUR COURTS. THEIR ACCEPTANCE OF

APPOINTMENT AND THEIR CONTINUING SERVICE IN SPITE OF

FINANCIAL SACRIFICE ARE TO-THEIR CREDIT. OURS IS A

PROFESSION WITH A LONG AND CONTINUING TRADITION OF PUBLIC

SERVICE AND THESE JUDGES HONOR THAT TRADITION. NEVERTHELESS -

WE HAVE NO RIGHT TO ASK NOR CAN WE REASONABLY EXPECT OUR

JUDGES TO MAKE A FINANCIAL SACRIFICE THAT WILL LAST FOR THE

REMAINDER OF THEIR PROFESSIONAL LIVES. THE JUDICIARY

MUST NOT BE OPEN ONLY TO THOSE WHOSE PRIVATE MEANS OR

WILLINGNESS TO EARN AT LESS THAN CAPACITY PERMITS THEM TO

SERVE AT THE PRESENT SALARY SCALE.

OF ALL GOVERNMENT EMPLOYEES JUDGES ARE MOST

PECULIARLY UNABLE TO LOBBY FOR THEIR OWN INTEREST. THIS

IS THE NATURAL RESULT OF THE STANDARDS WE HAVE FIXED AS

APPROPRIATE CONDUCT. IT MEANS HOWEVER THAT THE

-11-

ORGANIZED BAR AND MEMBERS OF THE LEGAL PROFESSION INDIVIDUALLY

AND COLLECTIVELY HAVE THE OBLIGATION TO SUPPORT APPROPRIATE

SALARY INCREASES FOR JUDGES AND TO DO SO WITH DETERMINATION

AND VIGOR. THE TIME TO MEET THIS OBLIGATION IS NOW.

I SHALL DO WHATEVER I CAN TO HELP. I HOPE THAT EACH OF

YOU WILL TOO.

-12- .

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