Speeches by Chesterfield - Vol. IX, 138-151. 1975-1976

VOLUME IX:

SPEECH NUMBER

#138

#139.

#140

- TITLE OR ROqPP ADDRESSED

& WHOSE INTEREST' I RV$D BY 'THE
EXISTING ETHICAL P DARD'S OF.
.THE BAR?-',- "
SHENNEPI~ COUNTYY' BAR ASSOCIATION
MinneapIlis:', Minnesota
-February 18, 1975

MODERN COURTS '
CITIZENS .CONFERENCE I -I -
MODERNIZATI'N OF SOUTH CAROLINA COURTS -
Columbia, South Carolina
*February 23, 1975

WHOSE INTEREST .IS SERVED BY. THE
EXISTING ETHICAL L STANDARDS OF:.
THE BAR?' -.;
FORDHAM LAW SCHOOL ALUMNI ASSOCIATION -
New York, New Yrk
March 1., '1975 ..

-STRONG STATE CONSTITUTIONS AS
ITHE KEY TO A VIABLE-: FEDERAL'
SYSTEM *
-CITIZENS' CONFERENCE -ON THE
4ALABAMA CONSTITUTION -
Birmingham, Alabama
March 28, 1975

1975 NATIONAL PRIORITIES IN
JUDICIAL REFORM -
NATIONAL CONFERENCE OF THE
AMERICAN CRIMINAL JUSTICE ASSOCIATION -
Orlando, Florida
April 12, 1975

#141

#142

'"

'

.. .4

VOLUME IX (cont.)

SPEECH NUMBER TITLE OR GROUP ADDRESSED

#143 CONSTITUTIONAL RIGHTS TO BE
LEFT ALONE BUT TO KNOW -
JACKSONVILLE UNIVERSITY COMMENCEMENT -
Jacksonville, Florida
April 19, 1975

#144 REMARKS RE. LAW DAY

#145 CONSTITUTIONAL RIGHTS TO BE
LEFT ALONE BUT TO KNOW -
ANNUAL LAW DAY LUNCHEON -
CLEARWATER, FLORIDA BAR ASSOCIATION-
Clearwater, Florida
May 2, 1975

#146 CONSTITUTIONAL RIGHTS TO BE
LEFT ALONE BUT TO KNOW -
JUNIOR WELFARE LEAGUE -
Sarasota, Florida
May 19, 1975

#147 WHAT MAKES A GOOD JUDGE?

#148 RESOURCE CENTER FOR CONSUMERS
OF LEGAL SERVICES -
Washington, D. C.
October 30, 1975

#149 LAWYERS WHO TAKE MUST PUT --
AT LEAST A LITTLE BIT.

#150 LAWYERS WHO TAKE MUST PUT --
AT LEAST A BIT -
Prepared for the Journal of
the Legal Profession, University
of Alabama School of Law

#150 (a) LETTER TO JAMES A. CLENDINEN
re. Busing -dated December 24, 1975

VOLUME IX (cont.)

SPEECH NUMBER

#151

TITLE OR.GROUP ADDRESSED

ETHICS IN GOVERNMENT -
THE IVY LEAGUE CLUB -
.Sarasota, Florida
February 3, 1976

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 138

VOLUME IX

ADDRESS OF:.

BEFORE:

PLACE:

DATE:.

SUBJECT:

TIME:

CHESTERFIELD SMITH
LAWYER
LAKELAND, FLORIDA

HENNEPIN COUNTY BAR ASSOCIATION

MINNEAPOLIS, MINNESOTA

TUESDAY, FEBRUARY 18, 1975
12:00 NOON

WHOSE INTEREST IS SERVED BY THE
EXISTING ETHICAL STANDARDS OF THE BAR?

THIRTY MINUTES

TODAY IN A RANDOM AND PERHAPS DISJOINTED WAY -

I WANT TO DISCUSS A GENERALLY ACCEPTED CONCEPTION CONCERNING
/

THE LEGAL PROFESSION WHICH I BELIEVE SHOULD NOW BE DISCARDED;

THAT IS THE PROCLAIMED POSTURE WITH THE GENERAL PUBLIC BY

THE ORGANIZED BAR THAT EACH LAWYER IS QUALIFIED TO PERFORM

ALL LEGAL TASKS AND THUS THAT THE GENERAL PUBLIC SHOULD

NOT BE TOLD ABOUT UNIQUE OR PECULIAR LEGAL TALENTS -

EXPERIENCES OR EDUCATIONAL QUALIFICATIONS BY THE

LAWYERS WHO POSSESS THEM.

PRESENT PROCEDURES ALLOWING LAWYERS TO RETAIN

LIFELONG LICENSES TO PRACTICE IN ANY AREA OR FIELD OF THE

LAW BASED SOLELY UPON PASSAGE AT EARLY AGES OF BAR

EXAMINATIONS OR IN SOME FEW GEOGRAPHIC AREAS SIMPLY

BY GRADUATION FROM A LOCAL LAW SCHOOL ARE NO LONGER

ADEQUATE GUARANTEES OF LIFETIME LEGAL OMNI-COMPETENCE -

IF THEY EVER WERE,

EQUALLY OBVIOUS EVEN THE VERY

BEST LAWYERS ARE USUALLY TRULY PROFICIENT IN ONLY A

FEW AREAS OF THE LAW MINIMALLY COMPETENT IN MULTIPLE

-2-

I----~*--)r~L-LIII*L31CC-I-~---rCIIC~ -~--r-II~C~-r*- C~- -I -r-Cr-e -r-.i~c---r--- ----r

AREAS AND. MOST LIKELY INCOMPETENT OR AT LEAST

INEFFICIENT IN THE REST.

AS PART AND PARCEL OF

PROFESSIONAL RESPONSIBILITY THE ORGANIZED BAR MUST

PROMPTLY CORRECT ABUSES TO THE CONSUMING PUBLIC WHICH

IT SERVES RESULTING FROM THE MYTHS OF OMNI-COMPETENCE.

IF LAWYERS WERE EVER THE JACK-OF-ALL LEGAL TRADES THEY

ARE NOT NOW NOR CAN THEY BE EVER AGAIN.

NO LONGER

SHOULD MARGINAL LAWYERS BE ALLOWED REPEATEDLY TO ACCEPT

CASES THAT THEY CANNOT PROFICIENTLY HANDLE NOR SHOULD

LAWYERS BE PERMITTED TO REMAIN A MEMBER OF THE BAR IF

THEY DO NOT.MAINTAIN AT LEAST A MINIMAL LEVEL OF PROFES-

SIONAL COMPETENCE.

SOME LAWYERS FOR VARIOUS REASONS FEEL THAT THE

-3-

BAR SHOULD LEAVE THESE PROBLEMS ALONE CONTENDING THAT

CLIENTS THROUGH THE MARKETPLACE WEED OUT BAD LAWYERS FROM

GOOD LAWYERS.

BUNK:

I SUGGEST TO YOU OUT OF THE

COMMON EXPERIENCES THAT ALL LAWYERS SHARE THAT CLIENTS

ARE NOT EVEN REMOTELY ABLE TO EVALUATE THE ABILITY OF

THEIR OWN ATTORNEY MUCH LESS ONE WITH WHOM THEY HAVE

HAD NO PREVIOUS CONTACT,

FURTHER IT IS INCONSISTENT

WITH PROFESSIONAL STANDARDS AND PROFESSIONAL INTEGRITY

TO SUGGEST THAT.THE DAMAGED CLIENT RELY ON THE ECONOMIC

MARKETPLACE AS THE MEANS TO INSURE THAT HE WILL NOT RECEIVE

BAD LEGAL SERVICE.

THE ORGANIZED BAR

SHOULD ESTABLISH PROCEDURES

WHEREBY ALL ATTORNEYS IN ORDER TO MAINTAIN THE PRIVILEGE

*-C L~ rrr*crr CLI*

----F~CC'-~t' rC -Lr r C C.- -r r

j.Lmr*r"l-n~CI*h4~~~C*~LICIII~Ie~

TO PRACTICE LAW DEMONSTRATE TO THEIR PEERS PERIODICALLY

THEIR CONTINUING COMPETENCE AT THE BAR.

THE DAY HAS

NOW BEEN REACHED WHEN DISCIPLINARY ACTION SHOULD BE

TAKEN AGAINST ATTORNEYS WHO FAIL TO MAINTAIN OR EXERCISE

COMPETENCE AS ATTORNEYS,

CODES OF PROFESSIONAL

RESPONSIBILITY NOW REQUIRE LAWYERS TO REPRESENT CLIENTS

COMPETENTLY AND MANDATE THAT LAWYERS STRIVE TO BECOME

AND REMAIN-PROFICIENT IN THEIR PRACTICE.

IF LAWYERS

ETHICALLY MUST REMAIN COMPETENT THEN THOSE WHO RENDER

SHODDY OR BAD SERVICE BECAUSE OF BASIC INCOMPETENCE ARE

GUILTY OF PROFESSIONAL MISCONDUCT.

GRIEVANCE COMMITTEES

AND COMMISSIONS MUST BEGIN TO INVOLVE THEMSELVES IN

DISCIPLINARY SANCTIONS AGAINST THOSE WHO HABITUALLY GIVE

-5-

~l;`-.-;r---*4- -i --c -'-

;---I .- -r -- w.f ~ O n e -. y r -- -

BAD SERVICE TO CLIENTS.

AS A MINIMUM I BELIEVE THAT

ALL GRIEVANCE COMMITTEES AND COMMISSIONS SHOULD INCLUDE

LAY MEMBERS.

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 IN ANY GIVEN SITUATION.

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 RECOMMENDA-

TIONS FOR RECOVERABLE SETTLEMENTS BY THE GUILTY LAWYER -

OR IF THAT FAILS FURNISH WITNESSES FOR THE INJURED

-6-

PARTY IN A MALPRACTICE SUIT.

BUT OVERALL LAWYER COMPETENCE IS NOT THE THRUST

OF MY REMARKS HERE.

TODAY I SET OUT WITH THE FIRM

BELIEF THAT MOST LAWYERS UP TO NOW HAVE BEEN UNCONCERNED

WITH A FREE MARKETPLACE FOR LAWYERS UNCONCERNED GENERALLY

WITH COMPETITION BETWEEN LAWYERS AND LAW FIRMS AND OTHER

PROFESSIONALS,

WHILE THERE PERHAPS ARE MULTIPLE OTHER

ANTI-COMPETITIVE ASPECTS OF MORE IMPORTANCE IN THE EXISTING

STRUCTURE OF THE LEGAL PROFESSION TODAY I SUGGEST THAT

THE ALMOST BLANKET ETHICAL PROHIBITION AGAINST ADVERTISING

BY LAWYERS IS NO LONGER TRENCHANT OR DEFENSIBLE.

WHEN THAT PROSCRIPTION AGAINST ADVERTISING WAS

PUT INTO THE CODE LONG AGO IT WAS DESIGNED AND PROPERLY

-7-

SO TO PREVENT THE COMMERCIALIZATION OF THE PRACTICE OF

LAW. IT WAS ASSERTED THAT A LAWYER SHOULD OBTAIN CLIENTS

ONLY BY DOING HIS WORK WELL BY ESTABLISHING A DESERVED

REPUTATION FOR COMPETENCE AND INTEGRITY AND THAT TO

ALLOW HIS PROFESSIONAL REPUTATION TO BE ESTABLISHED THROUGH

COMPETITIVE ADVERTISING WAS NOT IN THE PUBLIC INTEREST.

.IT IS INDISPUTABLE THAT TODAY THERE ARE CORPO-

RATIONS AND OTHER BUSINESS ENTITIES AND INDIVIDUALS WHO

ARE NOT LAWYERS BUT WHO THROUGH ADVERTISEMENTS BROCHURES -

ORALLY OR OTHERWISE HOLD THEMSELVES OUT TO THE PUBLIC

AS BEING AVAILABLE TO GIVE ASSISTANCE IN THE FIELD OF

WORK NORMALLY RELATED TO THE PRACTICE OF LAW.

IN FACT -

SUCH COMPETITION EXISTS IN ALMOST ALL AREAS OF PREVENTIVE

-8-

--~- --i -

LAW.

HOW DOES THAT SOLICITATION AFFECT LAWYERS'

CLIENTS OR THE POTENTIAL CLIENTS WHO ARE THE NOW

UNSERVICED GENERAL PUBLIC?

HOW DOES IT AFFECT THAT

PORTION OF THE BAR WHO ARE PRESENTLY UNDER-EMPLOYED -

AND THUS THE LEGAL PROFESSION AS AN ENTITY.

-HOW DOES

IT AFFECT THE SPECIALIST IN PREVENTIVE LAW AND HOW DOES

IT AFFECT THE PRACTITIONER WHO HAS LITTLE OR NO CAPACITY

OUTSIDE OF LIMITED AREAS OF THE LAW,

IT.IS ELEMENTARY THAT UNDER CANON 2 OFTHE CODE

OF PROFESSIONAL RESPONSIBILITY LAWYERS BOTH GENERALISTS

AND SPECIALISTS ARE FORBIDDEN TO SOLICIT LEGAL EMPLOYMENT

BY CIRCULARS ADVERTISEMENTS OR OTHERWISE.

THUS -

-9-

- ----r ---------. -~~r~r .;-- -----. r- --- '. -~r ------ --~~ C --.li.r -.r 3 -. ---~ -- -

NO LAWYER NO MATTER HOW COMPETENT MAY SOLICIT PREVENTIVE

LEGAL WORK OR BE EMPLOYED TO DO SUCH LEGAL WORK FOR A

NON-LAWYER WHO DOES.

LET ME MAKE IT CRYSTAL CLEAR THAT .IF I WERE KING

OF LAWYERS I WOULD NOT NOW AT THIS DATE AND JUNCTURE IN.

ANYWAY PERMIT UNRESTRICTED ADVERTISING BY LAWYERS OR LAW

FIRMS BUT AS KING OF LAWYERS I WOULD AT THIS POINT AND

STAGE HAVE THAT ALMOST TOTAL PROSCRIPTION STUDIED AND

REANALYZED BECAUSE AS KING OF LAWYERS I WOULD KNOW THAT

LAWYERS MUST BE WILLING TO ACCEPT MODIFICATIONS IN THE

STRUCTURE OF THE LEGAL PROFESSION IF ON BALANCE SUCH

MODIFICATIONS WILL HELP SOCIETY MORE THAN IT WILL HURT

THE LAWYERS,

THERE IS NOTHING UNETHICAL IN A LAWYER

-10-

PUBLICIZING LEGAL ACTIVITIES IF DONE IN ACCORDANCE WITH

THE PROVISIONS OF THE CODE OF PROFESSIONAL RESPONSIBILITY -

HOWEVER THAT CODE MAY FROM TIME TO TIME BE MODIFIED.

CERTAINLY ADVERTISING BY AN INDIVIDUAL LAWYER MUST

REFLECT DIGNITY DECORUM GOOD TASTE AND PROFESSIONAL

HONOR.

PRIMARY RESTRAINT ON LAWYER ADVERTISING BY

THE ORGANIZED BAR TO INSURE MINIMUM PROFESSIONAL STANDARDS

MAY BE NECESSARY AT LEAST INITIALLY.

OF NECESSITY -

LAWYER ADVERTISING SHOULD BE POLICED BY THE ORGANIZED BAR

TO PREVENT SOLICITATION AND ADVERTISING WHICH IS FALSE -

MISLEADING UNDIGNIFIED OR CHAMPERTOUS.

ADVERTISING

BY LAWYERS SHOULD BE REASONABLY CALCULATED TO EDUCATE

PERSONS ABOUT THEIR LEGAL RIGHTS AND RESPONSIBILITIES -

-11-

C -r -- c-- .~ .~-.,-,,,r~l-. - r,,- r~ - -r~r-~-r ~,~,r*,,,,~,r~*rrrr rr--*~,~ -r, ,,,-e- I~ -c. c -. ~;C- cl, -Cr

TO ENCOURAGE THE FULL UTILIZATION OF PREVENTIVE LAW TO

SPREAD KNOWLEDGE OF THE AVAILABILITY OF LEGAL SERVICES TO

PERSONS OF MODERATE MEANS TO ADVISE THOSE WHO MIGHT

UTILIZE LEGAL SERVICES HOW TO SELECT THE PROPER LAWYER

AND WHAT THE COST OF THAT LAWYERS' SERVICES TO THEM MIGHT

BE AND HOW THOSE LEGAL FEES WILL BE DETERMINED AND

TO INFORM THE GENERAL PUBLIC OF THE PROFESSIONAL ACTIVITIES

AND INTERESTS OF A PARTICULAR LAWYER OR GROUP OF LAWYERS.

IT SHOULD NOT BE DESIGNED FOR THE PURPOSE OF PROMOTING

SPECIFIC LITIGATION OR FOR THE PURPOSE OR WITH THE EFFECT

OF CREATING FALSE OR UNJUSTIFIED EXPECTATIONS OF SUCCESS.

IT SHOULD NEVER CONTAIN DISPARAGEMENT OF FELLOW LAWYERS -

OR THE COURTS OR THE LAW ITSELF.

BUT ALL OF THAT CAN

-12-

rtl~ ~1-I- _-.- ----- C-~C-I)--C .*LC-CI--I-C-*rCICYI-- ~-CIICL-~-C -LIIIC' ~Cillll- i- -LCle ~~--. L ~-.--.-...- I r-- --~--

11-- -i -r~ - r-- -r)~ C*u~r I llr 1s --~l~ c~- -~ir -- r- -r - -.- - '- -.-. -- i-

BE DONE BY RATHER SIMPLE MODIFICATION OF EXISTING ETHICAL

AND DISCIPLINARY STANDARDS.

AND WHY SHOULD SUCH MODIFICATIONS NOT BE MADE?

THE CONSUMER OF LEGAL SERVICES IS JUST AS ENTITLED TO

THE BENEFITS OF COMPETITION AS ARE CONSUMERS OF OTHER

SERVICES.

ALMOST EQUALLY SIGNIFICANT IT IS IN THE

INTEREST OF LAWYERS THAT WE AVOID UNNECESSARY RESTRICTIONS

ON COMPETITION AMONG LAWYERS AND BETWEEN LAWYERS AND

OTHER PROFESSIONALS.

OUR EXISTENCE AS A PROFESSION

DEPENDS UPON-OUR ABILITY TO SERVE THE PUBLIC ON TERMS

THAT THE PUBLIC WILL ACCEPT WHICH MEANS SIMPLY THAT WE

MUST COMPETE EFFECTIVELY WITH OTHERS WHO TOO WANT TO SERVE

THE PUBLIC,

COMPETITION FROM OUTSIDE THE LEGAL

-13-

PROFESSION IS THEREFORE A LEGITIMATE AND SERIOUS CONCERN

OF THE LEGAL-PROFESSION WHICH PERHAPS COULD BE MITIGATED

BY ADVERTISING.

MY THESIS SIMPLY IS THAT THE PUBLIC INCLUDING

BOTH CLIENTS AND POTENTIAL CLIENTS IS NOT PROTECTED

BY PROHIBITING THE LAWYER FROM.PUBLICLY PROCLAIMING THAT

LAWYERS IN GENERAL AND HE OR SHE SPECIFICALLY ARE BEST

SUITED TO RENDER ASSISTANCE WITH RESPECT TO A PARTICULAR

FACTUAL SITUATION AND ESPECIALLY IS THAT SO IT SEEMS

TO ME IN ALL AREAS OF PREVENTIVE LAW.

ACTIVITIES

GEARED TO MOTIVATING THE INDIVIDUAL CONCERNED TO DO

SOMETHING ABOUT HIS OR HER AFFAIRS AND TO SEEK THE MOST

COMPETENT PROFESSIONAL ADVICE AVAILABLE AS EARLY AS

-14-

C .-I -- c '^-i -'~~-CI---*L--rr~-r~-----lr-yCI~- ~*rr~-P"~ILCC*--i- C~-lrr- -rC CI-..- -`-- j' ~, ~-rrrTi~ +--e - ~-----

i Li-- -- -- -l~ -rs- -L-~ru-r~LU-y -.-- ---~-r ----i- _~C-- -C --.,- - -I~~-r I

POSSIBLE PREFERABLY FROM THE OUTSET ARE CLEARLY IN

THE PUBLIC INTEREST AND PROFESSIONAL RESTRICTIONS WHICH

MITIGATE OR CHILL SUCH ACTIVITIES SHOULD BE ADOPTED ONLY

WHEN THERE IS A COMPELLING PROFESSIONAL NEED WHICH CANNOT

BE MET IN ANY OTHER WAY,

WHILE A LAW PRACTICE.CAN STILL BE SUCCESSFULLY

DEVELOPED PRIMARILY ON THE BASIS OF A REPUTATION FOR

UNUSUAL SKILL AND PERCEPTIVENESS ON THE PART OF A LAWYER

HIMSELF CERTAINLY IT IS TRUE THAT THOSE NON-LAWYERS

WHO COMPETE WITH LAWYERS IN MANY AREAS HAVE AN INITIAL

EDGE BY ADVERTISING AND SOLICITATION AND IN SOME AREAS

THAT ADVANTAGE IS PRONOUNCED INDEED.

AT LEAST PARTIALLY

BECAUSE OF THAT THE EVOLUTION OF SPECIALTY DESIGNATION

-15-

_________-_ -_ --- -

IN THE PRACTICE OF LAW IS INEVITABLE AND IN MY OPINION -

HIGHLY DESIRABLE.

MOST PREVENTIVE LAW AREAS EASILY LEND THEMSELVES

TO SUCH REGULATED SPECIALTY .DESIGNATION AND TO DIGNIFIED

AND DECOROUS PUBLIC ADVERTISING OF THAT SPECIAL PROFICIENCY.

FOR EXAMPLE I SUGGEST THAT WHILE MOST POTENTIAL CLIENTS

START OFF WILLING TO GO TO EXTRA TROUBLE TO SEEK OUT A

LAWYER RATHER THAN SOME OTHER NON-LAWYER PROFESSIONAL -

TO HANDLE THEIR LEGAL PROBLEMS MANY OF THOSE POTENTIAL

CLIENTS ARE LOST TO THE LAWYER BECAUSE THEIR COMPETITORS

ENJOY SPECIAL AND UNIQUE ADVANTAGES IN ADVISING THOSE

POTENTIAL CLIENTS OF THEIR AVAILABILITY PROFICIENCY -

AND ECONOMY.

IF THAT IS SO WHAT ULTIMATELY HAPPENS

-16-

'4. -,- -a~~ -----------~--~--~- .-.---~--r .- -- a-~--- - - - -- - -- --- -- --

TO THOSE CLIENTS? I SUG

DISSERVICED PROFESSIONALLY;

GEST THAT QUITE OFTEN THEY ARE

IF THAT IS SO IS A RULE

OF LAWYER CONDUCT WHICH CAUSES SUCH A RESULT IN THE PUBLIC

INTEREST?'

DOES THAT RULE OF LAWYER CONDUCT TRULY SERVE

SOCIETY AS A WHOLE OR DOES IT SERVE ONLY A SELFISH

PROFESSIONAL INTEREST?

-I FRANKLY BELIEVE THAT THE ORGANIZED BAR WITH

SKILL TACT AND SENSITIVITY CAN DESIGN RULES OF PROFES-

SIONAL CONDUCT WHICH WILL ALLOW THE LAWYER TO DISSEMINATE

INFORMATION TO POTENTIAL CLIENTS DESIGNED TO BRING HOME

THE PECULIAR FIDUCIARY AND CONFIDENTIAL RELATIONSHIP OF

THE LAWYER TO THE CLIENT WITHOUT DESTROYING THE LEGAL

PROFESSION OR WITHOUT COMMERCIALIZING THE PRACTICE OF

-17-

LAW OR WITHOUT LOWERING THE OPINION OF THE GENERAL

PUBLIC ABOUT.LAWYERS AS A GROUP IN ANY SUBSTANTIAL WAY.

BELIEVING THAT I ASK AGAIN SHOULD THE

ORGANIZED BAR REANALYZE WHETHER CHANGES IN THE EXISTING

TOTAL PROSCRIPTION AGAINST LAWYER ADVERTISING UNDER

PREVALENT CONDITIONS ARE NOW DESIRABLE?

IS IT NOW

UNREALISTIC TO ASSERT THAT A LAWYER BY DILIGENCE HARD

WORK AND PERSERVERANCE PROMPTLY CAN ESTABLISH IN A LARGE

METROPOLITAN AREA SUCH AS THE TWIN CITIES A REPUTATION FOR

INDIVIDUAL LEGAL SKILL AND ABILITY?

CAN A LAWYER NOW
/

COMPETE EFFECTIVELY WITH NON-LAWYERS IN SECURING PREVEN-

TIVE LAW BUSINESS WITH OTHERS WHO CAN UTILIZE COMPETITIVE

ADVERTISING AND OTHER MEANS OF BUSINESS PROCUREMENT?

-18-

"'--`-'`-- -i-' ~~-'~`--'l"-;irrr ~~-c*~-rr- .--I -r------- - rx--~----- -I-cr~-rccrr ~--ro-r. ~ -~ ,., -,~ .,. ,~ ,,,,,

IS THE PUBLIC WELL SERVED WHEN A SPECIALLY PROFICIENT

LAWYER IN ONE AREA IS PROHIBITED FROM DESIGNATING THAT

AREA AS THE RESTRICTED AREA OF HIS PRACTICE AND OF

INFORMING THE PUBLIC OF HIS SPECIAL PROFICIENCY AND THE

LOGICAL DESIGNATION OF PRACTICE RESTRICTION HE HAS

ACCORDINGLY MADE?

IS NOT A.POTENTIAL CLIENT ENTITLED

TO THAT AID IN LAWYER SELECTION?

CLEAR THE ANSWERS ARE NOT.

THE QUESTIONS ARE

: MODERN ADVERTISING AND

MARKETING

TECHNIQUES

HAVE UNDOUBTEDLY HAD A PERVASIVE EFFECT ON THE AVERAGE

CITIZEN WHO HAS NEVER UTILIZED A LAWYER,

AS A CON-

SUMMER THE POTENTIAL CLIENT HAS BECOME CONDITIONED TO

TECHNIQUES THAT OFFER HIM GOODS AND SERVICES IN THE MOST

-19-

Cr r -~- - rl Irl_-l. -. ----*--r-~--------r ~n-----.~. -- ----3pl~-rrr ~---.~.Cry C- - --r -r ~ -

ACCESSIBLE CONVENIENT AND ATTRACTIVE MANNER.

COME TO HIM PRE-MIXED PRE-COOKED PRE-PACKAGED AND

EASY TO ACQUIRE.

-HE USES CHILLED ORANGE JUICE -

INSTANT COFFEE AND TV DINNERS.

TO EXPECT PEOPLE

TO PURSUE A COMPLETELY SELF-RELIANT COURSE IN SEEKING OUT

AND SECURING THE SERVICES OF A.LAWYER FOR PREVENTIVE LAW

MAY BE TO EXPECT TOO MUCH,

THE TRUTH MAY BE THAT ALMOST

ALL OF THOSE PEOPLE DO NOT KNOW ANYTHING ABOUT ANY

PARTICULAR LAWYER WHO IS AVAILABLE TO THEM.

ASSUME THAT A LAWYER IS A LAWYER IS A LAWYER

THEY

- AND THAT

IS NOT NOW SO IF IT EVER WAS.

PERHAPS THE SYSTEM OF ESTABLISHING

A LEGAL

REPUTATION BY PERFORMANCE STILL WORKS IN THE NATIONAL

-20-

;I ~~--r~rr~ - -I-~- r- Irr~--*-~..- rlrr~rCllrl.l-iF-~- CI - -- li --i-13CL i- CI-- jj

THEY

COMMERCIAL FINANCIAL AND INDUSTRIAL COMMUNITY WHICH

IN ITS TOTALITY TODAY IS SMALL ENOUGH THAT IT MIGHT

WELL BE COMPARED TO THE FRONTIER CITY WHICH WAS THE

MODEL FOR OUR PRESENT PRACTICES ON LAWYER SELECTION BY

CLIENTS.

IT IS TRUE THAT IN THE NATIONAL COMMERCIAL -

FINANCIAL AND INDUSTRIAL COMMUNITY '-. A LARGE LAW FIRM CAN

STILL ESTABLISH A REPUTATION FOR DILIGENCE SKILL -

COMPETENCE INTEGRITY AND QUALITY WORK BECAUSE

EVERYBODY IN THAT SPECIAL COMMUNITY WHO ALREADY MAKE

NEAR-OPTIMUM USE OF LAWYERS' SERVICES DOES KNOW ABOUT

PARTICULAR LARGE LAW FIRMS AND KNOWS THAT MULTIPLE

LEGAL TALENTS AND SKILLS ARE

INTERWOVEN IN THAT LARGE

LAW FIRM,

-21-

IT DOES NOT WORK THAT WAY FOR THE MASS OF THE

POPULATION ANYMORE EVEN IF IT ONCE DID BECAUSE

INDIVIDUALS IN THE MASS OF MEGALOPOLIS NO LONGER KNOW

ABOUT SOLE PRACTITIONERS OR SMALL LAW FIRMS OR EVEN

LARGE LAW FIRMS.

MOST INDIVIDUAL MEMBERS OF THE

GENERAL PUBLIC WOULD I BELIEVE SUPPOSE THAT ONE
i

LAWYER-COULD HELP HIM AS WELL AS ANOTHER A DEMONSTRABLY

FALSE BELIEF GENERALLY SO RECOGNIZED BY THE NATIONAL

COMMERCIAL FINANCIAL AND INDUSTRIAL COMMUNITY. A

LAWYER WHO IS KNOWN TO OTHER LAWYERS AS A SPECIALIST IN

ONE FIELD OF THE LAW FOR EXAMPLE IS GENERALLY ADMITTED

BY LAWYERS AS BEING MORE PROFICIENT IN THAT AREA THAN

-22-

C r- -r---- --*-C~C C--u~-- -L-rl-r-l ~ CTCII--.-- .*IC_~_~ 1~ II C-~ LI II1 -C -- CL- -) C -I C~ C- C

MOST GENERAL PRACTITIONERS AND MOST SPECIALISTS IN OTHER

FIELDS OF THE LAW.,

BUT-THE GENERAL PUBLIC.IN CONTRA-

DISTINCTION TO A KNOWLEDGEABLE LAWYER DOES NOT EVEN KNOW

WHICH LAWYERS DO SPECIALIZE IN ANY FIELD OF THE LAW -

SIMPLE BECAUSE THAT LAWYER CANNOT EVEN PUBLICLY DESIGNATE

A PARTICULAR AREA OF THE LAW IN WHICH HE WILL CONCENTRATE

HIS PRACTICE,

'YET IF LIMITED OR REGULATED ADVERTISING BY

LAWYERS IS PERMITTED IN THE HOPE THAT IT WILL INCREASE

THE UTILIZATION OF LAWYERS BY THE GENERAL PUBLIC IT

SEEMS HIGHLY IMPROBABLE THAT SUCH ADVERTISING WOULD HAVE

SIGNIFICANT EFFECT ON THE USE OF LAWYERS BY COMMERCIAL -

FINANCIAL AND INDUSTRIAL CLIENTS OR ALTER THE MEANS AND

-23-

-- --'-"-- -r~-r~--rr .*rrur-- - r I-~- r-;--rln-~r* -r~-~~3~-3-r~-- I-.Ll--- IC 3 - -- I-- ~~C. C ~ --- CI *^

-I- ..-,l ---'- .-~r~l C--r I~ Cr-- c~-----.,II C -C *.- C1- - I- C r*-- **-e .

METHODS OF REACHING THOSE PEOPLE WHO DO NOT NOW USE LEGAL

SERVICES PEOPLE WHO DO-NOT NOW KNOW WHETHER THEY HAVE

A LEGAL PROBLEM OR-- IF THEY DO KNOW HOW TO SELECT A

LAWYER TO REPRESENT THEM AND HOW MUCH THE LEGAL SERVICE

WILL COST ONCE THE-LAWYER IS SELECTED,

ADVERTISING IS

NEVER NORMALLY DESIGNED FOR THE SMALL OR EXCLUSIVE

MARKET IT WORKS BEST-WITH THE MASS MARKET AND AS

I.SEE IT THE MASS MARKET WHICH CAN BE TAPPED TO INCREASE

THE UTILIZATION OF LAWYERS PRIMARILY EMBODIES BOTH THE

MANY WHO NOW RELY ON SOME OTHER PROFESSION OR SERVICE -

OR OCCUPATION -OR BUSINESS FOR LEGAL ASSISTANCE AND THE

EVEN GREATER NUMBER WHO NEVER EMPLOY A LAWYER OR ANY OF

THE LAWYERS' COMPETITORS.

-24-

--- ~- -I~r. -~-- -C - - --_---~31L -1 --- CICCCI -I-II -- -l C- - -- .-~ -1 -

FRANKLY IT SEEMS TO ME THAT EVEN A SMALL

MODIFICATION.OF PROFESSIONAL PRACTICES MIGHT SUBSTANTIALLY

INCREASE THE UTILIZATION OF LEGAL SERVICES BY THE VAST

NUMBER OF OUR CITIZENS WHO DO NOT-NOW.REGULARLY USE

LAWYERS,

WHEN LAWYERS WHO SERVE COMMERCIAL FINANCIAL

AND INDUSTRIAL CLIENTS DO NOT ALLOW FEE COST ADVERTISING -

OR ADVERTISING ABOUT CERTAIN TYPES OF LEGAL SERVICES THAT

THE GENERAL PUBLIC NEEDS BUT DOES NOT NOW USE I SUGGEST

THAT THE ECONOMIC ELITE AMONG THE BAR MAY BE CAUSING

HARM TO THE GENERAL PUBLIC AND AT THE SAME TIME TO THAT

SEGMENT OF THEIR BRETHERN AT THE BAR PRESENTLY UNDER-

EMPLOYED.

I SUGGEST THAT THOSE LESS PROFICIENT IN

-25-

A PARTICULAR FIELD OF THE LAW MAY BE THUS DEPRIVING THE

PUBLIC OF THE KNOWLEDGE OF LAWYERS MORE SKILLED IN THAT

SPECIFIC AREA OF THE LAW AND OF THE KNOWLEDGE THAT SUCH

MORE SKILLFUL LAWYERS CAN WORK IN THAT AREA.FOR THEM

BETTER AND CHEAPER.

MOST LAWYERS WOULD AGREE THAT SOME TYPE OF

INSTITUTIONAL TYPE ADVERTISING IS ACCEPTABLE.

WHERE

THEY HAVE TROUBLE IS WHEN IT IS SUGGESTED THAT AN INDIVIDUAL

LAWYER SHOULD BE PERMITTED TO ADVERTISE.

BUT EACH

LAWYER HAS AN OBLIGATION HIMSELF TO DECIDE WHICH. ORGANIZA-

TION OF THE LEGAL PROFESSION WILL MAKE THE SYSTEM OF JUSTICE

WORK BEST FOR SOCIETY FIRST AND THE LEGAL PROFESSION

AND LAWYERS SECOND.

BLIND ADHERENCE TO TRADITIONAL

-26-

C;-~~y~-- C rC ---1 ~- CII-r-C rl*C'

PRACTICES NO LONGER VALID ARE UNWORTHY OF A HIGH CALLING -

EVEN THOUGH ORIGINALLY SUCH TRADITIONS HAD A LEGITIMATE

PURPOSE.

THUS EACH PROPOSED CHANGE IN THE STRUCTURE

OF THE LEGAL PROFESSION SHOULD BE-LOOKED AT ON THE FACTS'

TO ASCERTAIN THE BASIC VALUES OF THE LEGAL PROFESSION

WHICH IT IS ESSENTIAL TO PROTECT AND THEN THAT PROPOSAL

MUST BE SO ADAPTED THAT THOSE THINGS THOSE VALUES ARE

PRESERVED AND PROTECTED WITHOUT DENYING TO SOCIETY THE

OTHER BENEFITS WHICH.WOULD FLOW FROM THE PROPOSED MODIFICATION.

I THUS REITERATE WHOM ARE WE PROTECTING WHEN

WE PROHIBIT LAWYERS FROM COMPETING EQUALLY WITH OTHER

GROUPS WHO COMPETE WITH LAWYERS?

WHOM ARE WE PROTECTING

WHEN WE CHILL THE ABILITY OF A YOUNG LAWYER TO ADVERTISE

-27-

CCLI "- C*CI~-- _~e~S-r~

---~ *- -- - ~ -rC

-:-~--,; -- --* a* -rrrr -. ------* I-~ ~-.-~~~~ a-. --- .

LOWER LEGAL FEES THAN ARE CHARGED BY THOSE LAWYERS WHO

HAVE ALL THE.LEGAL BUSINESS THEY CAN HANDLE PROFICIENTLY -

AND PERHAPS SOMETIMES EVEN MORE?.

SHOULD WE AS OFFICERS

OF THE COURTS RE-EXAMINE OUR DUTY TO THE CONSUMING PUBLIC

IN THE AREA OF MAKING OUR COMPETENCE OUR AVAILABILITY -

AND OUR.INTEREST IN PERFORMING SERVICES KNOWN TO THOSE WHO

DO NOT NOW KNOW?

IS THE PRESENT RULE AGAINST SOLICITATION

IN THE PUBLIC INTEREST OR IS IT A SELFISH RULE DESIGNED

TO REGULATE AND PERPETUATE THE UNEVEN DISTRIBUTION OF LEGAL

SERVICES AMONG LAWYERS BY LEAVING THE LEGAL WORKIWITH THOSE

WHO ALREADY HAVE. IT.

BY THOSE ANTI-COMPETITIVE

RESTRICTIONS AGAINST ADVERTISING HAVE WE LOCKED LEGAL

BUSINESS IN TO THOSE WHO ALREADY HAVE TOO MUCH OF IT?

-28-

THE ANSWERS ARE NOT CLEAR BUT AT LEAST I PERSONALLY WOULD

NOW RESPOND TO THOSE QUESTIONS BY SAYING "PERHAPS".

LAWYERS TEND BY NATURE AND TRAINING TO BE

INDEPENDENT AND USUALLY ARE AMONG THE MOST ARDENT SUP-

PORTERS OF FREE COMPETITION.

IT IS STRANGE THAT THOSE

WHO SO CHERISH THE FREE ENTERPRISE SYSTEM SHOULD THEMSELVES

PRACTICE UNDER A SYSTEM OF RESTRICTIONS THAT SUBSTANTIALLY

LIMITS COMPETITION DEPRIVING THE-PUBLIC OF THE BENEFITS

WHICH COMPETITION NORMALLY PRODUCES.

AS LAWYERS WE SHOULD RE-EVALUATE WHETHER

LIMITED ADVERTISING UNDER REGULATED CONDITIONS IN SUCH

AREAS AS IDENTIFICATION OF PREVENTIVE LEGAL PROBLEMS AND

THE LEGAL FEES PROBABLY INVOLVED IN THEIR RESOLUTION WOULD

-29-

rr -~d~I~-C~-Cr--- T-- -- --------------~ICCTI-C

+----.-.-?-Y- -r*- CC 1-'- - C - -~-----~

I

BE MORE BENEFICIAL TO SOCIETY THAN IT IS HARMFUL TO THE

LEGAL PROFESSION.

.I SUBMIT THAT WE AS LAWYERS.SHOULD

AGAIN CONSIDER WHETHER AN ETHICAL PROSCRIPTION AGAINST

ALL LAWYER SOLICITATION IS.THE BEST OR ONLY WAY TO PRESERVE

THE VALUES WHICH WE WISH PROTECTED AND ENHANCED AND

WHETHER THAT ARBITRARY RULE.OF LAWYER CONDUCT ACCOMPLISHES

BEST FOR BOTH SOCIETY AND THE LEGAL PROFESSION THE RESULT

IT WAS DESIGNED TO ACCOMPLISH.

WHAT DO YOU THINK ABOUT LAWYER ADVERTISING?

I IMAGINE THAT YOU HAVE NOT,

I HOPE THAT YOU WILL.

(END)

-30-

-- II~L1F

--rr~--~LC C- CI ~ - - C- -r --3r -U

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 139

VOLUME IX

ADDRESS OF:

BEFORE:

PLACE:

CHESTERFIELD SMITH
LAWYER
-LAKELAND, FLORIDA

CITIZENS CONFERENCE II -
MODERNIZATION OF SOUTH CAROLINA COURTS

TOWN HOUSE HILTON HOTEL
COLUMBIA, SOUTH CAROLINA

FRIDAY, FEBRUARY 28, 1975
6:00 P,M.

DATE:

SUBJECT:

MODERN COURTS

TWENTY MINUTES

TIME:

A PRIME RESPONSIBILITY OF ANY CIVILIZED SOCIETY

IS THE PROMPT EVEN-HANDED AND EFFECTIVE ADMINISTRATION

OF JUSTICE,

EQUITABLE RESOLUTION OF DISPUTES BETWEEN

CITIZENS AND BETWEEN CITIZENS AND THEIR GOVERNMENT STRIKES

TO THE VERY HEART OF THE PROMISE OF OUR DEMOCRATIC WAY OF

2/3

CERTAINLY OUR JUDICIAL INSTITUTIONS AND AT

CENTER STAGE AMONG THESE INSTITUTIONS OUR COURTS TOUCH

MEN AT THE MOST IMPORTANT MOMENTS IN THEIR LIVES IN TIMES

OF SEVERE PERSONAL CRISIS.

IF OUR NATION IS TO ENDURE

WITHOUT CHAOS OR GOVERNMENTAL OPPRESSION OUR CITIZENS

MUST TRUST OUR SYSTEM OF JUSTICE AND WITHIN THAT SYSTEM -

THE COURTS TRUST IT TO ENFORCE THE LAW AND TO RESOLVE

DISPUTES IN A FAIR AND EXPEDITIOUS WAY.

YET IN MANY PARTICULARS OUR JUSTICE SYSTEM OF

TODAY JUST DOES NOT FULLY MEASURE UP TO SUCH A STANDARD

OF TRUST OR SO IT SEEMS TO ME.

LARGE NUMBERS OF OUR

PEOPLE DO LOOK AT SOME ELEMENTS OF OUR JUSTICE SYSTEM

WITH MISTRUST AND SCORN.

.IN MANY AREAS OF OUR COUNTRY -

-2-

LIFE.

SUBSTANTIAL SEGMENTS OF OUR OVERALL JUSTICE SYSTEM HAVE

LOST BOTH THE COOPERATION AND THE CONFIDENCE OF LARGE

MASSES OF OUR POPULATION,

THE MINORITIES AND THE POOR.

I DO NOT MERELY REFER TO

PEOPLE FROM ALL STATIONS

AND ALL WALKS OF LIFE OPENLY AND VIGOROUSLY HAVE EXPRESSED

THEIR DISSATISFACTION.

IT SEEMS TO ME THAT THAT

ATTITUDE AT LEAST ON THE PART OF SOME IS NOT WITHOUT

FOUNDATION,

IN MANY LOCALITIES AND STATES WE SIMPLY

HAVE NOT MAINTAINED MODERN RESPONSIVE EQUITABLE JUSTICE

SYSTEMS.

THE INDICES OF FAILURE ARE ALL TOO APPARENT -

THE RISING INCIDENCE OF CRIME OVERCROWDED JAILS AND

PRISONS FLOODED COURT DOCKETS THE HIGH PATE OF

RECIDIVISM AMONG THOSE ALLEGEDLY "CORRECTED" ALL INDICATE

THAT SOMETHING IS TERRIBLY WRONG,

FAULT LIES PRIMARILY IN THE CURRENT STRUCTURE OF THE

SYSTEM OF JUSTICE ITSELF.

THAT IS NOT TO SAY THAT THE

PEOPLE WHO ADMINISTER JUSTICE INSTITUTIONS THE JUDGES -

POLICE PROSECUTORS DEFENDERS PRISON PERSONNEL -

PAROLE AND PROBATION OFFICERS HAVE NOT THROUGH PERSONAL

DERELICTIONS DISHONESTY OR MISFEASANCE CONTRIBUTED

TO THAT FAILURE IN MANY INSTANCES BUT ON THE WHOLE -

IT IS CLEAR TO ME THAT THE OVERWHELMING MAJORITY OF THOSE

IN PUBLIC SERVICE IN THE JUSTICE SYSTEM HAVE WORKED BEYOND

ALL REASONABLE EXPECTATIONS TO MAKE IT WORK.

I REITERATE

THEN THAT IN MY JUDGMENT THE MAJOR PART OF THE PROBLEM

WITH OUR JUSTICE SYSTEMS IS NOT IN THOSE WHO ADMINISTER IT -

I SUBMIT THAT THE

. .1 1 -

BUT USUALLY IT IS IN THE STRUCTURE OF THE SYSTEM ITSELF,

AT THE HEART OF OUR JUSTICE SYSTEM ARE THE COURTS,

MOST OF.OUR CITIZENS LOOK EXCLUSIVELY TO THE COURTS WHEN

THEY THINK OF JUSTICE,

THAT MAY WELL BE THE WRONG

DIRECTION TO LOOK BUT WHEN THEY DO LOOK AT THE COURTS -

THEY ARE CONFRONTED WITH CROWDED COURTS OVERWORKED AND

UNDERPAID JUDGES INORDINATE COURT DELAY LONG WAITS

IN JAIL UNIMPRESSIVE AND DISCRIMINATING PRACTICES IN

INFERIOR COURTS PLEA BARGAINING.

THEY SEE A BENCH

WHERE THE BEST LAWYERS AVAILABLE ARE NOT ALWAYS JUDGES.

THEY SEE A SYSTEM WHERE SLOW MOTION JUSTICE HAS BECOME

THE RULE AND NOT THE EXCEPTION.

OUR COURTS SIMPLY ARE

NOT PROPERLY ORGANIZED AND MANAGED TO MEET THE MODERN

-5-

NEEDS OF A COMPLEX SOCIETY.

I SUBMIT THAT A GOOD COURT SYSTEM CAN BE MEASURED

BY A SIMPLE AND FUNDAMENTAL TEST WHETHER IT DISPENSES

JUSTICE OF A HIGH QUALITY THAT IS PROMPT AND INEXPENSIVE.

IT IS PROPER THAT WE ON A CONTINUING BASIS EXAMINE OUR

COURT SYSTEMS AGAINST THAT TEST SO THAT WE CAN SEE WHAT

IS LACKING AND MAKE IMPROVEMENTS.

FIRST THE QUALITY OF JUSTICE IN MOST STATES

BEARS A DIRECT RELATIONSHIP TO THE PERSONS WHO SERVE AS

JUDGES.

HIGH QUALITY JUSTICE CAN BE DISPENSED ONLY

IF THE MOST COMPETENT AND PROFICIENT LAWYERS AVAILABLE

ARE ON THE BENCH.

IT HAS BEEN SAID "A GOOD MAN IS HARD TO FIND."

-6-

FOR MY PURPOSES I WOULD RESTATE THIS MAXIM AND SAY THAT

"A GOOD JUDGE IS HARD TO FIND AND EVEN HARDER TO KEEP."

A JUDGE LACKING IN TALENT OR CHARACTER CAN MAKE A SHAMBLES

OF THE MOST FINELY CONTRIVED JUDICIAL PROCESS.

MEN

AND WOMEN OF WISDOM AND CONSUMMATE SKILL MUST BE SELECTED

AND RETAINED AS JUDGES TO MAKE ANY JUSTICE SYSTEM FUNCTION

PROPERLY.

THERE IS OF COURSE NO SINGLE SYSTEM FOR

SELECTING JUDGES THAT WILL GUARANTEE TO US WISE AND

GOOD PERSONS AS JUDGES.

WHAT WE WANT IN A JUDGEj

WE DO HOWEVER ALL KNOW

WE KNOW ABOVE ALL THAT

WE WANT MEN OR WOMEN WHO HAVE DISTINGUISHED THEMSELVES

BOTH IN THE FIELD OF LAW AND IN THE WIDER PUBLIC CONSTITUENCY -

-7-

FOR THAT ESSENTIAL COMBINATION OF WISDOM JUDGMENT AND

FAIRNESS THAT MUST GOVERN A VIABLE LEGAL SYSTEM,

OUR

JUDGES OF COURSE SHOULD IDEALLY BE OUR BEST LEGAL

MINDS.

WHILE MANY OF OUR JUDGES CERTAINLY DO MEASURE

UP TO SUCH A STANDARD THE SAD FACT IS THAT THERE ARE

ALSO MANY WHO DO NOT.

THE DIFFICULTY IS NOT CAUSED BY

A LACK OF QUALIFIED LAWYERS,

THERE IS AN ABUNDANCE OF OUTSTANDING LEGAL TALENT

IN ALL OF OUR STATES.

IS IN SOUTH CAROLINA,

CERTAINLY TO MY KNOWLEDGE THERE

UNFORTUNATELY NOT ENOUGH OF THAT

TALENT REACHES THE BENCH.

I SUBMIT THAT THE MANNER OF SELECTION THE

ATTRACTIVENESS OF JUDICIAL POSITIONS AND THE MEANS OF

-8-

RETENTION ARE CRUCIAL IN PROCURING THOSE MEN AND WOMEN

THAT WILL MAKE FOR A SUPERIOR JUDICIARY IN ANY STATE,

IN MOST STATES MANY IMPROVEMENTS IN PRESENT

PROCEDURES COULD BE MADE,

IT APPEARS TO ME THAT EFFORTS

SHOULD BE MADE IN ALL STATES TO REMOVE THE SELECTION BY

EXECUTIVE APPOINTMENT OF JUDGES FROM THE POLITICAL SPOILS

SYSTEM.

I AM NOT SAYING THAT A MAN OR WOMAN ACTIVE

IN POLITICS CANNOT BE A GOOD JUDGE OR THAT A PERSON

APPOINTED BECAUSE OF PAST SERVICES TO A GOVERNOR OR

OTHER EXECUTIVE OR IN A LEGISLATIVE BODY MAY NOT SERVE

ADMIRABLY.

SOME OF OUR BEST JUDGES FREQUENTLY HAVE

LONG RECORDS OF VIGOROUS AND EFFECTIVE SERVICE IN PUBLIC

I DO BELIEVE HOWEVER THAT THE JUDICIAL QUALITIES

-9-

LIFE.

OF SCHOLARSHIP BALANCE AND RESTRAINT ARE NOT NECESSARILY

THOSE THAT CONTRIBUTE TO SUCCESSFUL POLITICAL ACTIVITY,

I SUGGEST THAT THE ADVANCES MADE IN MANY STATES BY THE USE

OF JUDICIAL NOMINATING COMMISSIONS COMPOSED OF THE MOST

ABLE JUDGES LAWYERS AND LAY CITIZENS OFFER AN EFFECTIVE

MEANS OF SELECTING THE FINEST MEN FOR VACANCIES ON THE

BENCH,

I AM VERY PLEASED THAT SOUTH CAROLINA HAS NOW

EMBARKED ON SUCH A COURSE,

FROM A PERSONAL STANDPOINT AS A FLORIDA TRIAL

LAWYER IT IS CRYSTAL CLEAR TO ME THAT A JUDICIAL VACANCY

SHOULD BE FILLED BY APPOINTMENT OR SELECTION ONLY FROM

A MERIT PANEL AND THAT THE JUDGE APPOINTED SHOULD BE

PERMITTED TO SERVE ONLY SO LONG AS HE OR SHE MAINTAINS A

-10-

SATISFACTORY JUDICIAL RECORD.

WHILE SUCH A CONSTITUTIONAL OR STATUTORY SYSTEM

WILL HELP ANY STATE TO OBTAIN THE FINEST POSSIBLE JUDICIARY -

IT ALONE IS NOT ENOUGH,

WE MUST ALSO INSURE TO OUR

SITTING JUDGES ADEQUATE COMPENSATION JOB SECURITY AND

RETIREMENT BENEFITS IF WE ARE TO ATTRACT AND KEEP THE

BEST PEOPLE THE BEST LAWYERS AS JUDGES,

OUR MOST

SUCCESSFUL AND OFTEN OUR BEST LAWYERS WILL USUALLY TAKE

A SUBSTANTIAL CUT IN INCOME IF THEY BECOME JUDGES. A

PERSON WE HAVE PERSUADED TO DON JUDICIAL ROBES SHOULD BE

RELATIVELY SECURE IN OFFICE DURING GOOD BEHAVIOR.

THE

ATTORNEY WHO BECOMES A JUDGE HAS RISKED HIS ECONOMIC SECU-

RITY BY ACCEPTING A POSITION ON THE BENCH;

HIS OR HER

-11-

CLIENTS HAVE BEEN ABSORBED BY OTHER LAWYERS,

JUDGE IS THEREAFTER TURNED OUT OF OFFICE HE OR SHE -

MUST ONCE AGAIN SUFFER THE PANGS OF DEVELOPING A PRACTICE,

I REITERATE JUDGES IF WE ARE TO ENTICE AND HOLD THE

BEST MUST RECEIVE COMPENSATION AND BENEFITS THAT COMPARE

FAVORABLY WITH WHAT A JUDGE COULD EXPECT IN PRIVATE PRACTICE,

QUALITY JUSTICE ALSO DEPENDS ON A SYSTEM THAT

CAN ASSURE PROMPT AND EFFICIENT SERVICE FOR THE LITIGANTS,

EFFORTS MUST BE MADE IN AREAS OF COURT ORGANIZATION AND

ADMINISTRATION TO IMPROVE OUR PRESENT SYSTEM,

MORE

EFFECTIVE AND WIDESPREAD USE OF COURT ADMINISTRATORS -

AS IS NOW THE PRACTICE IN SOUTH CAROLINA WILL IN MY

OPINION HELP SOLVE MANY OF THESE PROBLEMS NOT AT ONCE -

-12-

IF THE

BUT ON AN EVOLUTIONARY TREND WHICH CAN ONLY BE BENEFICIAL,

CHIEF JUSTICE WARREN BURGER IN DISCUSSING THE NEED FOR

COURT REFORM HAS ASKED "WHY DOES AMERICAN JUSTICE TAKE

SO LONG?"

HE HAS ANSWERED HIS OWN QUESTION BY SAYING

THAT AT LEAST A PART OF THE PROBLEM IS A LACK OF UP-TO-DATE

PROCEDURES AND STANDARDS FOR ADMINISTRATION AND MANAGEMENT

AND ESPECIALLY THE LACK OF TRAINED COURT ADMINISTRATORS,

HE SAID ",..WE HAVE 58 ASTRONAUTS CAPABLE OF FLYING TO

THE MOON BUT NOT THAT MANY AUTHENTIC COURT ADMINISTRATORS

AVAILABLE TO SERVE IN THE STATE AND FEDERAL SYSTEMS."

GREAT AND SUSTAINED EFFORT SHOULD BE MADE TO USE TRAINED

COURT ADMINISTRATORS AND MORE MODERN METHODS OF COURT

ADMINISTRATION,

A LONG STRIDE IN THAT DIRECTION CAN

-13-

BE MADE BY THE SIMPLIFICATION OF OUR COURT SYSTEMS BY

COURT UNIFICATION PROPOSALS NOW BEING USED OR CONSIDERED

IN MANY STATES AND AS ADOPTED IN SOUTH CAROLINA IN 1972.

THE PUBLIC IS OFTEN CONFUSED AND DISORIENTED BY THE MYRIAD

AND VARIED COURTS OF DIFFERING JURISDICTIONS AND DIFFERING

NAMES,

A UNIFORM SINGLE TRIAL COURT SYSTEM ALSO HELPS

ATTRACT OUR BEST LAWYERS TO THE TRIAL BENCH,

THE FACT

THAT A COURT IS NAMED OR STYLED AS A LOWER OR INFERIOR

COURT WITH LIMITED JURISDICTION IN AND OF ITSELF -

PREVENTS MANY OF OUR BETTER LAWYERS FROM WANTING TO SERVE

AS JUDGES OF THESE COURTS,

FURTHER COURT ADMINISTRATION

AND FINANCING IS MADE MORE DIFFICULT WHEN THERE ARE TOO

MANY LEVELS OF TRIAL AND APPELLATE COURTS FINANCED AND

-14-

MANAGED BY VARIOUS MUNICIPALITIES COUNTIES AND OTHER

GOVERNMENTAL ENTITIES,

IT APPEARS TO ME THAT THE LOWER

COURTS WHICH HAVE THE MOST FREQUENT CONTACT WITH OUR

CITIZENS SHOULD MERIT OUR GREATEST CONCERN,

THOSE

COURTS DESERVE THE VERY BEST THAT WE CAN DO TO INSURE

DIGNITY FAIRNESS AND EFFICIENCY,

A UNIFIED AND

SIMPLIFIED TRIAL COURT SYSTEM THAT WOULD INCREASE THE

DIGNITY AND QUALITY OF THE LOWER TRIAL COURTS COULD

AUGUR WELL FOR A HIGHER STANDARD OF JUSTICE AND I ENDORSE

IT WITHOUT RESERVATION.

I KNOW THAT BOTH COURT UP-DATE

AND THE SOUTH CAROLINA BAR ARE COMMITTED TO THAT GOAL,

OF COURSE MANY OTHER MATTERS MERIT YOUR ATTENTION

AND CONCERN.

MOST COURT SYSTEMS NEED MORE EFFECTIVE

-15-

SOUTH CAROLINA WENT A LONG WAY

IN THIS DIRECTION IN THE 1972 JUDICIAL AMENDMENT TO THE

STATE CONSTITUTION,

THE RELATIONSHIPS BETWEEN THE

COURTS AND THE VARIOUS COURT SUPPORT AGENCIES SUCH AS

PROBATION AND PAROLE OFFICES WELFARE DEPARTMENTS -

CORRECTIONS COMMISSIONS MENTAL HEALTH FACILITIES -

AND VARIOUS VOLUNTEER COMMUNITY SERVICE ORGANIZATIONS -

MUST BE MORE FIRMLY ESTABLISHED,

ACCESS TO THE COURTS

MUST BE MADE MORE AVAILABLE TO THE LITIGANT WITH MODEST

RESOURCES BY MAKING THE COST OF LITIGATION LESS BURDENSOME.

(WE CANNOT AND MUST NOT RESERVE OUR FORUMS OF JUSTICE FOR

ONLY THE VERY RICH AND THE VERY POOR.)

THE LIST OF

POSSIBLE AREAS FOR YOUR CONCERN MAY BE INEXHAUSTIBLE FOR

-16-

RULE-MAKING PROCEDURES,

IT SEEMS TO ME THAT THE CONTINUED EXAMINATION AND SUBSEQUENT

IMPROVEMENT OF OUR COURT SYSTEMS IS AN ABSOLUTE NECESSITY.

THE GENERAL ASSEMBLY OF SOUTH CAROLINA DEMONSTRATED

ITS CONTINUING CONCERN LAST YEAR WHEN THE COMMITTEE TO

CONDUCT A COMPLETE STUDY OF THE STATE'S COURT SYSTEM WAS

CREATED ON A PERMANENT BASIS TO MAKE "A CONTINUOUS STUDY".

IT IS MY PERSONAL OPINION THAT SOUTH CAROLINA LEADS THE

NATION IN THIS PARTICULAR ASPECT OF COURT MODERNIZATION,

MEASURED AGAINST THE FUNDAMENTAL TEST THAT OUR

COURT SYSTEM MUST BE PROMPT FAIR AND INEXPENSIVE -

MANY OF THE COURT SYSTEMS IN OUR STATES BOTH CRIMINAL

AND CIVIL SIMPLY DO NOT MEASURE UP,

THE TRUTH IS

THAT TODAY OUR JUDICIAL SYSTEM IS BEING TESTED AS NEVER

-17-

INDEED THE SYSTEM IS IN CRISIS.

AND CHARACTER OF THE CASES IN OUR COURTS ARE WITHOUT PRECEDENT

IN HISTORY.

THE ISSUES INVOLVED RANGE FROM COMPLEX

QUESTIONS OF CONSTITUTIONAL LAW TO NEW STANDARDS OF CRIMINAL

JUSTICE,

AND ACROSS THE NATION NOT ONLY THE LEGAL

PROFESSION BUT THE ENTIRE CITIZENRY IS ENGAGED IN HEATED

DEBATES ABOUT COURT DECISIONS AND COURT PRACTICES.

MY OWN EXPERIENCES HAVE LED ME TO THE SINCERE

CONVICTION THAT EACH OF OUR STATES MUST BE SOMEWHAT

DIFFERENT FROM OTHER STATES IN WHAT IT ADOPTS AS THE

STRUCTURE FOR ITS COURT SYSTEM.

THE RESPECTIVE

DEMOGRAPHIC ECONOMIC GEOGRAPHIC AND ATTITUDINAL

REALITIES ALMOST DEMAND THAT THERE IS NO ONE BEST WAY.

-18-

THE VOLUME

BEFORE.

THE PRINTED MATERIALS PUT OUT BY THOSE OF YOU SEEKING TO IMPROVE

THE COURTS IN SOUTH CAROLINA CONVINCE ME THAT YOU HAVE ADAPTED

THE BEST FROM OTHER STATES TO THE HISTORICAL PECULIARITIES

OF YOUR OWN STATE.

I MYSELF CAN THINK OF NO IMPORTANT FACET

OF COURT MODERNIZATION WITH WHICH YOU HAVE BEEN UNCONCERNED.

LET ME SUGGEST TO YOU THAT AT SUCH A TIME AS

THIS ONLY THE MOST CONCERTED EFFORTS BY CITIZENS SUCH

AS YOURSELVES TO REFORM OUR JUSTICE SYSTEMS CAN SUCCEED

IN RESTORING THE FAITH OF OUR PEOPLE,

YOUR TASK IS

NOT EASY BUT COURT REFORM HAS ALWAYS BEEN A DIFFICULT

THE FRUITS HOWEVER OF "JUSTICE FOR ALL"

IS I SUBMIT WORTH THE TOIL AND EFFORT,

OUR JOINT

ASPIRATIONS CAN ONLY BE ACHIEVED BY INTELLIGENT YET MAXIMUM

-19-

TASK,

IT IS NOT ENOUGH THAT WE KNOW AND CARE ABOUT

JUSTICE ALL MEN AND WOMEN OF SOUTH CAROLINA MUST BE

MADE AWARE OF THE ROLE A MODERN JUSTICE SYSTEM CAN PLAY

IN MAKING THIS.HISTORIC STATE AN EVEN BETTER PLACE TO

WORK AND LIVE,

IT IS A LONG ROAD TO TRAVEL AS

THOSE OF YOU WHO WORKED SO HARD IN 1970 AND 1971 AND

1972 KNOW AND THE FIRST PART IS UPHILL,

BUT 1972

IS NOW BEHIND YOU AND LIKE.ALL ROADS AND ALL HILLS -

YOU MAY WELL BE AT A POINT WHERE THE GOING IS EASIER

AND THE DESTINATION NEAR.

IN ALL EVENTUALITIES -

I KNOW FROM PERSONAL EXPERIENCES THAT IT WILL BE MOST

REWARDING TO THOSE WHO MAKE THE ENTIRE TRIP, MOST OF YOU

HAVE GONE A VERY LONG WAY I HOPE THAT YOU WILL COMPLETE

-20-

EFFORT.

THE JOURNEY,

(END)

-21-

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 140

VOLUME IX

ADDRESS OF:

BEFORE:

PLACE:

DATE:

SUBJECT:

TIME:

CHESTERFIELD SMITH
LAWYER
LAKELAND, FLORIDA

FORDHAM LAW SCHOOL ALUMNI ASSOCIATION

WALDORF ASTORIA HOTEL
NEW YORK, NEW YORK

SATURDAY, MARCH 1, 1975
12:30 P.M.

WHOSE INTEREST IS SERVED BY THE
EXISTING ETHICAL STANDARDS OF THE BAR?

TWENTY MINUTES

TODAY IN A RANDOM AND PERHAPS DISJOINTED WAY -

I SHALL DISCUSS A GENERALLY ACCEPTED CONCEPTION ABOUT

THE LEGAL PROFESSION WHICH I BELIEVE SHOULD NOW BE DISCARDED;

THAT IS THE PROCLAIMED POSITION BY THE ORGANIZED BAR TO

-*1 /%

THE GENERAL PUBLIC THAT EACH AND EVERY LAWYER IS QUALIFIED

TO PERFORM ALL LEGAL TASKS AND THUS THAT THE GENERAL

PUBLIC NEED NOT BE TOLD IN FACT SHOULD NOT BE TOLD -

ABOUT UNIQUE OR PECULIAR LEGAL TALENTS EXPERIENCES -

OR EDUCATIONAL QUALIFICATIONS OF A LAWYER WHO POSSESSES

THEM.

PRESENT PROCEDURES ALLOWING LAWYERS TO RETAIN

LIFELONG LICENSES TO

PRACTICE IN ANY AREA OR FIELD OF

THE LAW BASED SOLELY UPON PASSAGE AT EARLY AGES OF BAR

EXAMINATIONS OR IN SOME FEW GEOGRAPHIC AREAS SIMPLY
/

BY GRADUATION FROM A LOCAL LAW SCHOOL ARE NO LONGER

ADEQUATE GUARANTEES OF LIFETIME LEGAL OMNI-COMPETENCE -

IF THEY EVER WERE.

EQUALLY OBVIOUS EVEN THE VERY

-2-

BEST LAWYERS ARE USUALLY TRULY PROFICIENT IN ONLY A

FEW AREAS OF THE LAW MINIMALLY COMPETENT IN MULTIPLE

AREAS AND MOST LIKELY INCOMPETENT OR AT LEAST

INEFFICIENT IN THE REST.

IT SEEMS TO ME THAT -

AS PART AND PARCEL OF PROFESSIONAL RESPONSIBILITY THE

ORGANIZED BAR MUST PROMPTLY CORRECT CONTINUING ABUSES TO

THE CONSUMING PUBLIC WHICH IT SERVES RESULTING FROM THESE

MYTHS OF OMNI-COMPETENCE,

IF LAWYERS WERE EVER

THE JACK-OF-ALL LEGAL TRADES THEY ARE NOT NOW NOR

CAN THEY BE EVER AGAIN.

NO LONGER SHOULD MARGINAL

LAWYERS BE ALLOWED REPEATEDLY TO ACCEPT CASES THAT THEY

CANNOT PROFICIENTLY HANDLE NO LONGER SHOULD LAWYERS BE

PERMITTED TO PRACTICE IN A PARTICULAR FIELD OF THE LAW IF

-3-

TWO

1-7- -.71

THEY DO NOT MAINTAIN AT LEAST A MINIMAL LEVEL OF PROFESSIONAL

COMPETENCE IN THAT FIELD AND PERHAPS OF EVEN GREATER

IMPORTANCE NO LONGER SHOULD MEMBERS OF THE CONSUMING

PUBLIC WHO WISH TO EMPLOY A LAWYER BE DENIED ESSENTIAL

INFORMATION ABOUT A LAWYER WHICH WOULD AID IN LAWYER

SELECTION.

TODAY I SET OUT WITH THE FIRM BELIEF THAT MOST

LAWYERS UP TO NOW HAVE BEEN UNCONCERNED WITH A FREE

MARKETPLACE FOR LAWYERS UNCONCERNED GENERALLY WITH

COMPETITION BETWEEN LAWYERS AND LAW FIRMS AND OTHER

PROFESSIONALS.

WHILE THERE PERHAPS ARE MULTIPLE OTHER

ANTI-COMPETITIVE ASPECTS OF MORE IMPORTANCE IN THE EXISTING

STRUCTURE OF THE LEGAL PROFESSION I NOW SUGGEST THAT THE

ALMOST BLANKET ETHICAL PROHIBITION AGAINST ADVERTISING

BY LAWYERS IS NO LONGER TRENCHANT OR DEFENSIBLE.

WHEN THAT PROSCRIPTION AGAINST ADVERTISING WAS

PUT INTO THE CODE LONG AGO IT WAS DESIGNED AND PROPERLY

SO TO PREVENT THE COMMERCIALIZATION OF.THE PRACTICE OF

LAW.

IT WAS ASSERTED THAT LAWYERS SHOULD OBTAIN CLIENTS

ONLY BY DOING THEIR WORK WELL BY ESTABLISHING A DESERVED

REPUTATION FOR COMPETENCE AND INTEGRITY AND THAT TO

ALLOW A PROFESSIONAL REPUTATION TO BE ESTABLISHED THROUGH

COMPETITIVE ADVERTISING WAS NOT IN THE PUBLIC INTEREST.
/

LET ME MAKE IT CRYSTAL CLEAR THAT IF I WERE KING

OF LAWYERS I WOULD NOT NOW AT THIS DATE AND JUNCTURE IN

ANYWAY PERMIT UNRESTRICTED ADVERTISING BY LAWYERS OR LAW

FIRMS BUT AS KING OF LAWYERS I WOULD AT THIS POINT AND

STAGE HAVE THAT ALMOST TOTAL PROSCRIPTION STUDIED AND

REANALYZED BECAUSE AS KING OF LAWYERS I WOULD KNOW THAT

LAWYERS MUST BE WILLING TO ACCEPT MODIFICATIONS IN THE

STRUCTURE OF THE LEGAL PROFESSION IF ON BALANCE SUCH

MODIFICATIONS WILL HELP SOCIETY MORE THAN IT WILL HURT

THE LAWYERS,

THERE IS NOTHING UNETHICAL IN A LAWYER

PUBLICIZING LEGAL ACTIVITIES IF DONE IN ACCORDANCE WITH

THE PROVISIONS OF THE CODE OF PROFESSIONAL RESPONSIBILITY -

HOWEVER THAT CODE MAY FROM TIME TO TIME BE MODIFIED.
/

CERTAINLY ADVERTISING BY AN INDIVIDUAL LAWYER MUST

REFLECT DIGNITY DECORUM GOOD TASTE AND PROFESSIONAL

HONOR.

PRIMARY RESTRAINT ON LAWYER ADVERTISING BY

-6-

THE ORGANIZED BAR TO INSURE MINIMUM PROFESSIONALSTANDARDS MAY

BE NECESSARY AT LEAST INITIALLY.

OF NECESSITY LAWYER

ADVERTISING SHOULD BE POLICED BY THE ORGANIZED BAR TO PREVENT

SOLICITATION AND ADVERTISING WHICH IS FALSE MISLEADING -

UNDIGNIFIED OR CHAMPERTOUS.

ADVERTISING BY LAWYERS

SHOULD BE REASONABLY CALCULATED TO EDUCATE PERSONS ABOUT

THIER LEGAL RIGHTS AND RESPONSIBILITIES TO ENCOURAGE THE

FULL UTILIZATION OF PREVENTIVE LAW TO SPREAD KNOWLEDGE

OF THE AVAILABILITY OF LEGAL SERVICES TO PERSONS OF MODERATE

MEANS TO ADVISE THOSE WHO MIGHT UTILIZE LEGAL SERVICES
/

HOW TO SELECT THE PROPER LAWYER AND WHAT THE COST OF THAT

LAWYERS' SERVICES TO THEM MIGHT BE TO ACQUAINT THEM

WITH HOW THOSE LEGAL FEES WILL BE DETERMINED AND

-7-

TO INFORM THE GENERAL PUBLIC OF THE PROFESSIONAL ACTIVITIES -

INTERESTS AND EXPERIENCES OF A PARTICULAR LAWYER OR GROUP

OF LAWYERS. "

THE USE OF ANY ADVERTISING BY A LAWYER

SHOULD NORMALLY BE RESTRICTED TO NON-ADVERSARY OFFICE

PRACTICE,

IT SHOULD NOT BE DESIGNED FOR THE PURPOSE.

OF PROMOTING SPECIFIC LITIGATION NOR FOR THE PURPOSE

NOR WITH THE EFFECT OF CREATING FALSE OR UNJUSTIFIED

EXPECTATIONS OF SUCCESS.

IT SHOULD NEVER CONTAIN

DISPARAGEMENT OF FELLOW LAWYERS OR THE-COURTS OR

THE-LAW ITSELF.

BUT ALL OF THAT CAN BE DONE BY

RATHER SIMPLE MODIFICATION OF EXISTING ETHICAL AND

DISCIPLINARY STANDARDS,

AND WHY SHOULD SUCH MODIFICATIONS NOT BE MADE?

-8-

THE CONSUMER OF LEGAL SERVICES IS JUST AS ENTITLED TO

THE BENEFITS OF COMPETITION AS ARE CONSUMERS OF OTHER

SERVICES.

ALMOST EQUALLY SIGNIFICANT IT IS IN THE

INTEREST OF LAWYERS THAT WE AVOID UNNECESSARY RESTRICTIONS

ON COMPETITION AMONG LAWYERS AND BETWEEN LAWYERS AND

OTHER PROFESSIONALS,

OUR EXISTENCE AS A PROFESSION

DEPENDS UPON OUR ABILITY TO SERVE THE PUBLIC ON TERMS

THAT THE PUBLIC WILL ACCEPT WHICH MEANS SIMPLY THAT WE

MUST COMPETE EFFECTIVELY WITH OTHERS WHO TOO WANT TO SERVE

THE PUBLIC,

COMPETITION FROM OUTSIDE THE LEGAL

PROFESSION IS THEREFORE A LEGITIMATE AND SERIOUS CONCERN

OF THE LEGAL PROFESSION.

MY THESIS SIMPLY IS THAT THE PUBLIC INCLUDING

-9-

BOTH CLIENTS AND POTENTIAL CLIENTS IS NOT PROTECTED

BY PROHIBITING THE LAWYER FROM PUBLICLY PROCLAIMING THAT

LAWYERS IN GENERAL AND HE OR SHE SPECIFICALLY ARE BEST

SUITED TO RENDER ASSISTANCE WITH RESPECT TO A PARTICULAR

FACTUAL SITUATION AND ESPECIALLY IS THAT SO IT SEEMS

TO ME IN ALL AREAS OF PREVENTIVE LAW.

ACTIVITIES

GEARED TO MOTIVATING THE INDIVIDUAL CONCERNED TO DO

SOMETHING ABOUT HIS OR HER LEGAL AFFAIRS AND TO SEEK

THE MOST COMPETENT PROFESSIONAL ADVICE AVAILABLE AS EARLY

AS POSSIBLE PREFERABLY FROM THE OUTSET ARE CLEARLY IN
/

THE PUBLIC INTEREST AND PROFESSIONAL RESTRICTIONS WHICH

MITIGATE OR CHILL SUCH ACTIVITIES SHOULD BE ADOPTED ONLY

WHEN THERE IS A COMPELLING PROFESSIONAL NEED WHICH CANNOT

-10-

BE MET IN ANY OTHER WAY.

WHILE A LAW PRACTICE CAN STILL BE SUCCESSFULLY

DEVELOPED PRIMARILY ON THE BASIS OF A REPUTATION FOR

UNUSUAL SKILL AND PERCEPTIVENESS ON THE PART OF A LAWYER

HERSELF OR HIMSELF CERTAINLY IT IS TRUE THAT THOSE NON-

LAWYERS WHO COMPETE WITH LAWYERS IN MANY AREAS HAVE AN

INITIAL EDGE BY ADVERTISING AND SOLICITATION AND IN

SOME AREAS THAT ADVANTAGE IS PRONOUNCED INDEED, AT

-LEAST PARTIALLY BECAUSE OF THAT THE EVOLUTION OF SPECIALTY

DESIGNATION IN THE PRACTICE OF LAW IS INEVITABLE AND -IN
/

MY OPINION HIGHLY DESIRABLE,

I FRANKLY BELIEVE THAT THE ORGANIZED BAR WITH

SKILL TACT AND SENSITIVITY CAN FORMULATE RULES OF

-11-

PROFESSIONAL CONDUCT PERMITTING LIMITED ADVERTISING WHICH

WILL INCREASE THE DEMAND FOR LEGAL SERVICES BY ALLOWING

THE INDIVIDUAL LAWYER TO DISSEMINATE DESIRABLE INFORMATION

TO POTENTIAL CLIENTS WITHOUT DESTROYING THE LEGAL PROFESSION -

OR WITHOUT COMMERCIALIZING THE PRACTICE OF LAW OR WITHOUT

LOWERING THE OPINION OF THE GENERAL PUBLIC ABOUT LAWYERS

AS A GROUP IN ANY SUBSTANTIAL WAY.

BELIEVING THAT AS I DO I REITERATE SHOULD

THE ORGANIZED BAR REANALYZE WHETHER CHANGES IN THE EXISTING

TOTAL PROSCRIPTION AGAINST LAWYER ADVERTISING UNDER

PREVALENT CONDITIONS ARE NOW DESIRABLE?

IS IT NOW

UNREALISTIC TO ASSERT THAT A LAWYER BY DILIGENCE HARD

WORK AND PERSEVERANCE PROMPTLY CAN ESTABLISH IN A LARGE

-12-

METROPOLITAN AREA SUCH AS NEW YORK CITY A REPUTATION FOR

INDIVIDUAL LEGAL SKILL AND ABILITY?

CAN A LAWYER NOW

COMPETE EFFECTIVELY WITH NON-LAWYERS IN SECURING PREVENTIVE

LAW BUSINESS WITH OTHERS WHO CAN UTILIZE COMPETITIVE ADVER-

TISING AND OTHER MEANS OF BUSINESS PROCUREMENT?

IS THE

PUBLIC WELL SERVED WHEN A SPECIALLY PROFICIENT LAWYER IN ONE

AREA IS PROHIBITED FROM DESIGNATING THAT AREA AS THE RESTRICTED

AREA OF HIS OR HER PRACTICE AND OF INFORMING THE PUBLIC OF

HIS OR HER SPECIAL PROFICIENCY AND THE LOGICAL DESIGNATION

OF PRACTICE RESTRICTION SHE OR HE HAS ACCORDINGLY MADE?

OT A POTETI CLIENT TILED TO THAT AID LAWYER
IS NOT A POTENTIAL CLIENT ENTITLED TO THAT AID IN LAWYER

SELECTION?

THE QUESTIONS ARE CLEAR THE ANSWERS ARE

BECOMING INCREASINGLY MORE SO,

-13-

MODERN ADVERTISING AND MARKETING TECHNIQUES HAVE

UNDOUBTEDLY HAD A PERVASIVE EFFECT ON THE AVERAGE CITIZEN

WHO HAS NEVER UTILIZED A LAWYER.

AS A CONSUMER THE

POTENTIAL CLIENT HAS BECOME CONDITIONED TO TECHNIQUES THAT

OFFER HIM OR HER GOODS AND SERVICES IN THE MOST ACCESSIBLE -

CONVENIENT AND ATTRACTIVE MANNER.

THEY COME TO HIM OR

HER PRE-MIXED PRE-COOKED PRE-PACKAGED AND EASY TO

ACQUIRE.

THE CONSUMER USES CHILLED ORANGE JUICE -

INSTANT COFFEE AND TV DINNERS.

TO EXPECT PEOPLE

TO PURSUE A COMPLETELY SELF-RELIANT COURSE IN SEEKING OUT
AND SECURING TE SERVICES OF A YER F PREVENTIVE AW
AND SECURING THE SERVICES OF A LAWYER FOR PREVENTIVE LAW

MAY BE TO EXPECT TOO MUCH,

THE TRUTH MAY BE THAT ALMOST

ALL OF THOSE PEOPLE DO NOT KNOW ANYTHING ABOUT ANY

-14-

PARTICULAR LAWYER WHO IS AVAILABLE TO THEM.

ASSUME THAT A LAWYER IS A LAWYER IS A LAWYER AND THAT

IS NOT NOW SO IF IT EVER WAS.

PERHAPS THE SYSTEM OF ESTABLISHING A LEGAL

REPUTATION BY PERFORMANCE STILL WORKS IN THE NATIONAL

COMMERCIAL FINANCIAL AND INDUSTRIAL COMMUNITY WHICH

IN ITS TOTALITY TODAY IS SMALL ENOUGH THAT IT MIGHT

WELL BE COMPARED TO THE FRONTIER CITY WHICH WAS THE

MODEL FOR OUR.PRESENT PRACTICES-ON LAWYER SELECTION BY

CLIENTS,

CERTAINLY IT DOES NOT WORK THAT WAY FOR THE
/

MASS OF THE POPULATION ANYMORE EVEN IF IT ONCE DID -

BECAUSE INDIVIDUALS IN THE MASS OF MEGALOPOLIS NO LONGER

KNOW ABOUT SOLE PRACTITIONERS OR SMALL LAW FIRMS OR

-15-

THEY

MOST INDIVIDUAL MEMBERS OF THE

GENERAL PUBLIC WOULD I BELIEVE SUPPOSE TODAY THAT ONE

LAWYER COULD HELP HIM OR HER AS WELL AS ANOTHER A

DEMONSTRABLY FALSE BELIEF GENERALLY SO RECOGNIZED BY THE

NATIONAL COMMERCIAL FINANCIAL AND INDUSTRIAL COMMUNITY.

A LAWYER WHO IS KNOWN TO OTHER LAWYERS AS A SPECIALIST IN

ONE FIELD OF THE LAW FOR EXAMPLE IS GENERALLY ADMITTED

BY LAWYERS AS BEING MORE PROFICIENT IN THAT AREA THAN

MOST GENERAL PRACTITIONERS AND MOST SPECIALISTS IN OTHER

FIELDS OF THE LAW.

BUT THE GENERAL PUBLIC IN CONTRA-

DISTINCTION TO A KNOWLEDGEABLE LAWYER DOES NOT EVEN KNOW

WHICH LAWYERS DO SPECIALIZE IN ANY FIELD OF THE LAW -

SIMPLE BECAUSE THAT LAWYER CANNOT EVEN PUBLICLY DESIGNATE

-16-

EVEN LARGE LAW FIRMS,

A PARTICULAR AREA OF THE LAW IN WHICH THAT LAWYER WILL

CONCENTRATE HIS OR HER PRACTICE.

YET IF LIMITED OR REGULATED ADVERTISING BY

LAWYERS IS PERMITTED IN THE HOPE THAT IT WILL INCREASE

THE UTILIZATION OF LAWYERS BY THE GENERAL PUBLIC IT

SEEMS HIGHLY IMPROBABLE THAT SUCH ADVERTISING WOULD HAVE

f
SIGNIFICANT EFFECT ON THE USE OF LAWYERS BY COMMERCIAL -

FINANCIAL AND INDUSTRIAL CLIENTS OR ALTER THE MEANS AND

METHODS OF REACHING THOSE PEOPLE WHO DO NOT NOW USE LEGAL

SERVICES PEOPLE WHO DO NOT NOW KNOW WHETHER THEY HAVE
/

A LEGAL PROBLEM OR IF THEY DO KNOW HOW TO SELECT A

LAWYER TO REPRESENT THEM AND HOW MUCH THE LEGALSERVICE

WILL COST ONCE THE LAWYER IS SELECTED.

LIMITED

-17-

* &X: .AWV('

ADVERTISING BY LAWYERS WOULD NOT CHANGE IN ANYWAY THE

SELECTION OF LAWYERS BY THE CHASE MANHATTAN BANK OR BY

THE FORD MOTOR COMPANY.

ADVERTISING IS NEVER NORMALLY

DESIGNED FOR THE SMALL OR EXCLUSIVE MARKET IT WORKS

BEST WITH THE MASS MARKET AND AS I SEE IT THE MASS

MARKET WHICH CAN BE TAPPED TO INCREASE THE UTILIZATION

OF LAWYERS PRIMARILY EMBODIES BOTH THE MANY WHO NOW RELY

ON SOME OTHER PROFESSION OR SERVICE OR OCCUPATION -

OR BUSINESS FOR LEGAL ASSISTANCE AND THE EVEN GREATER

NUMBER WHO NEVER EMPLOY A LAWYER OR ANY OF THE LAWYERS'
/

COMPETITORS.

WHEN LAWYERS WHO SERVE COMMERCIAL FINANCIAL

AND INDUSTRIAL CLIENTS DO NOT ALLOW FEE COST ADVERTISING -

-18-

OR ADVERTISING ABOUT CERTAIN TYPES OF LEGAL SERVICES THAT

THE GENERAL PUBLIC NEEDS BUT DOES NOT NOW USE I SUGGEST

THAT THE ECONOMIC ELITE AMONG THE BAR MAY BE CAUSING

HARM TO THE GENERAL PUBLIC AND AT THE SAME TIME TO THAT

SEGMENT OF THE BAR PRESENTLY UNDER-EMPLOYED.

I SUGGEST

THAT THOSE LESS PROFICIENT IN A PARTICULAR FIELD OF THE LAW

MAY BE THUS DEPRIVING THE PUBLIC OF THE KNOWLEDGE OF

LAWYERS MORE SKILLED IN THAT SPECIFIC AREA OF THE LAW -

AND OF THE KNOWLEDGE THAT SUCH MORE SKILLFUL LAWYERS CAN

WORK.IN THAT AREA FOR THEM MORE EFFICIENTLY AND THUS

BETTER AND CHEAPER.

WHOM ARE WE PROTECTING WHEN WE PROHIBIT LAWYERS

FROM COMPETING EQUALLY WITH OTHER GROUPS WHO COMPETE WITH

-19-

.r

LAWYERS?

WHOM ARE WE PROTECTING WHEN WE CHILL THE

ABILITY OF A YOUNG LAWYER TO ADVERTISE LOWER LEGAL FEES

THAN ARE CHARGED BY THOSE LAWYERS WHO HAVE ALL THE LEGAL

BUSINESS THEY CAN HANDLE PROFICIENTLY AND PERHAPS SOMETIMES

EVEN MORE?

IN VIEW OF THE BURGEONING INCREASE IN THE

NUMBER OF LAWYERS WHICH MAY HAVE CAUSED THE SUPPLY OF LEGAL

SERVICES TO OUTPACE THE DEMAND SHOULD WE AS OFFICERS

OF THE COURTS RE-EXAMINE OUR DUTY TO THE CONSUMING PUBLIC

IN THE AREA OF MAKING COMPETENCE AVAILABILITY AND

INTEREST OF A LAWYER IN PERFORMING SERVICES KNOWN TO THOSE

WHO DO NOT NOW KNOW?

IS THE PRESENT RULE AGAINST

SOLICITATION UNDER MODERN CONDITIONS IN THE PUBLIC INTEREST -

OR IS IT A SELFISH RULE DESIGNED TO REGULATE AND PERPETUATE

-20-

THE UNEVEN DISTRIBUTION OF LEGAL SERVICES AMONG LAWYERS BY

LEAVING THE LEGAL WORK WITH THOSE WHO ALREADY HAVE IT.

DO LAWYERS NOW GET AROUND THE EXISTING RULES BY COVERT

ADVERTISING?

SHOULD LAWYER ACTIVITIES DESIGNED TO

SECURE CLIENTS BE BROUGHT OUT INTO THE SUNSHINE?

THOSE EXISTING ANTI-COMPETITIVE RESTRICTIONS AGAINST EVEN-

* LIMITED ADVERTISING HAVE WE LOCKED LEGAL BUSINESS IN

TO THOSE WHO ALREADY HAVE TOO MCUH OF IT?

I ACKNOWLEDGE

THAT THE ANSWERS TO THE FOREGOING QUESTIONS ARE NOT CLEAR -

BUT AT LEAST I PERSONALLY WOULD NOW RESPOND BY SAYING -

"PERHAPS LET'S STUDY IT,"

AS A LAWYER I HAVE ALWAYS BELIEVED THAT THE

ORGANIZED BAR SHOULD PERIODICALLY EXAMINE AND RE-EVALUATE

-21-

EXISTING STRUCTURES AND MORES OF THE LEGAL PROFESSION.

WHETHER LIMITED ADVERTISING BY LAWYERS UNDER REGULATED

CONDITIONS IN SUCH AREAS AS IDENTIFICATION OF PREVENTIVE

LEGAL PROBLEMS AND THE LEGAL FEES PROBABLY INVOLVED IN

THEIR RESOLUTION WOULD BE MORE BENEFICIAL TO SOCIETY

THAN IT IS HARMFUL TO THE LEGAL PROFESSION IS ADMITTEDLY

A CONTROVERSIAL AREA BUT THAT FACT ALONE UNDOUBTEDLY

WARRANTS ITS CONTINUING SCRUTINY BY THOSE ON BOTH SIDES

OF THE CONTROVERSY.

WHETHER AN ETHICAL BLANKET

PROSCRIPTION AGAINST ALL LAWYER SOLICITATION IS THE BEST

OR ONLY WAY TO PRESERVE THE PROFESSIONAL VALUES WHICH

MUST BE PROTECTED AND ENHANCED IF THE LAWYER IS TO RETAIN

AN ESTIMABLE POSITION IN OUR SOCIETY WHETHER THAT ARBITRARY

-22-

RULE OF LAWYER CONDUCT ACCOMPLISHES BEST FOR BOTH SOCIETY

AND THE LEGAL PROFESSION THE RESULT IT WAS DESIGNED TO

ACCOMPLISH IS A DETERMINATION ESSENTIAL TO THE CONTINUING

CREDIBILITY OF THE LEGAL PROFESSION AND THUS TO THE

VIABILITY OF JUSTICE ITSELF.

WHAT DO YOU THINK ABOUT A LAWYER BEING PERMITTED

OPENLY TO ADVERTISE?

I HOPE THAT YOU WILL

I IMAGINE THAT YOU HAVE NOT.

(END)

-23-

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 141

VOLUME IX

19)

ADDRESS OF:

BEFORE:

DATE:

TITLE:

CHESTERFIELD SMITH
LAWYER
LAKELAND, FLORIDA

CITIZENS' CONFERENCE ON THE
ALABAMA CONSTITUTION

FRIDAY, MARCH 28, 1975
7:30 P.M.

STRONG STATE CONSTITUTIONS AS THE
KEY TO A VIABLE FEDERAL SYSTEM

TWENTY MINUTES

TIME:

3 a

IN RECENT YEARS, STARTLING PROPOSALS HAVE BEEN MADE

FROM TIME TO TIME CALLING FOR THE ABOLISHMENT OF THE

STATES AS GOVERNMENTAL ENTITIES AND FOR THEIR REPLACEMENT

BY REGIONAL OR SECTIONAL ADMINISTRATIVE UNITS CREATED BY --

AND UNDER THE DIRECT AUTHORITY OF -- THE NATIONAL GOVERNMENT.

WHILE SUCH IDEAS APPEAR RATHER EXTREME TO THOSE OF US WHO --

BY HISTORY OR TRADITION -- HAVE ACCEPTED THE INVIOLABILITY

OF STATE LINES AND STATE IDENTITIES; I SUGGEST THAT SUCH

PROPOSALS ARE ONLY THE INEVITABLE EXTENSION OF THE

INCESSANT AND EVER-INCREASING TREND TOWARD CENTRALIZATION

THAT HAS MARKED OUR GOVERNMENT AT ALL LEVELS THROUGHOUT

HISTORY.

THOSE OF US BORN AND BRED IN THE SOUTH HAVE LONG

-2-

CHERISHED THE HISTORIC ROLE OF THE STATES, AND MOST OF

US ARE INCLINED TO THINK PROPOSALS TO ABOLISH THEM ARE

ONLY LAUGHABLE, YET, I SUGGEST THAT REGIONAL CENTRALIZATION

AS A POSSIBLE SUBSTITUTE FOR STATE GOVERNMENT WOULD NOT

APPEAR SO POLITICALLY AND HISTORICALLY ABSURD IF WE WOULD

ONLY CAST AN EYE AT WHAT IS HAPPENING WITHIN MOST STATE

BOUNDARIES AT THE MUNICIPAL LEVEL,

IN ALMOST ALL STATES, LOCAL GOVERNMENT IN RECENT

YEARS HAS CONTINUALLY ENLARGED ITS BOUNDARIES, ENCOMPASSING

HERETOFORE SEPARATE MUNICIPALITIES.

IN MANY AREAS WE

NOW HAVE METRO-TYPE GOVERNMENTS -- ADMINISTERING THROUGH

A SINGLE GOVERNMENTAL UNIT -- AT LEAST PART OF THE PUBLIC

NEEDS OF A LARGE AREA IN WHICH PREVIOUSLY THOSE NEEDS WERE

-3-

INADEQUATELY MET -- IF THEY WERE MET AT ALL -- BY MANY

SEPARATE MUNICIPALITIES. CITY AFTER CITY HAS EXPANDED

ITS CITY LIMITS FOR MILES AND MILES. IN SOME INSTANCES,

CITIES HAVE EVOLVED INTO AN ENTITY CO-EXTENSIVE WITH THE

COUNTY AND -- IN SOME INSTANCES -- EXPANDED SO FAR THAT

THEY EMBRACE ONE OR MORE COUNTIES,

THIS TYPE OF

CENTRALIZATION PACKS PERSUASIVE REASONING OF EFFICIENCY -

BETTER ADMINISTRATIVE CONTROL -- AND THE ELIMINATION OF

OVERLAPPING AND WASTEFUL DUPLICATION OF. GOVERNMENTAL

SERVICES,

ITS POLITICAL VIABILITY IS DEMONSTRATED BY

ITS ACCEPTANCE BY THE ELECTORATE,

WE MUST ADMIT THAT THE REASONING FOR LOCAL

GOVERNMENT EXPANSIONS WAS CERTAINLY NOT ILL-CONCEIVED,

PRESENT GOVERNMENTAL UNITS WERE JUST NOT WORKING WELL

UNDER MODERN CONDITIONS -- CITIESj COUNTIES, AND STATES

JUST WERE NOT PERFORMING SERVICES IN MANY AREAS WHICH

THE PEOPLE WANTED -- AND TO WHICH THEY WERE LEGITIMATELY

ENTITLED,

THUS A LOGICAL SOLUTION WAS TO CENTRALIZE --

TO EXPAND BOUNDARIES -- TO ENCOMPASS MORE TERRITORY --

THUS SEEKING THROUGH BIGNESS -- A GREATER EFFICIENCY AND

GREATER ECONOMY TO ALLEVIATE PERCEIVED DEFICIENCIES,

GIVEN THE INEPTNESS OF MOST STATE GOVERNMENTS, IT

IS EASY TO SEE HOW SOME COULD DRIFT FROM THERE INTO

QUESTIONING THE USEFULNESS AND NECESSITY OF STATE LINES

ALSO. I PERSONALLY DO NOT AGREE, BUT I DO FEEL THAT STATE

GOVERNMENTAL EFFECTIVENESS AND CONTINUED LIFE IS CERTAINLY

-C

-5-

IN JEOPARDY -- THAT -- WITHOUT INNOVATION AND MODERNIZATION --

STATE GOVERNMENT COULD CONCEIVABLY FADE FROM THE GOVERNMENTAL

SCENE IN THE NOT-TOO-DISTANT FUTURE. I REITERATE THAT,

WHILE I AM AN ADVOCATE FOR THE STATES AGAIN BECOMING STRONG

PARTNERS IN THE FEDERAL SYSTEM, I DO REALIZE THAT THOSE

WHO FEEL THAT THE STATES NO LONGER SERVE A USEFUL FUNCTION.

HAVE SOME VERY PERSUASIVE FACTUAL ARGUMENTS ON THEIR SIDE,

THE FEDERAL SYSTEM WAS ORIGINALLY INTENDED AS A BOND.

OF STRONG, SELF-RELIANT STATE GOVERNMENTS, WITH A CENTRAL

GOVERNMENT STRONG ONLY IN THOSE AREAS WHERE COMBINED
/

ACTION WAS THOUGHT PREFERABLE, FROM THE BEGINNING THAT

CONCEPT HAS NOT BEEN REALIZED AND -- IN MY VIEW -- THE

UNITED STATES OF AMERICA HAS BEEN AN ILLUSORY AND UNEQUAL

-6-

PARTNERSHIP OF EVER-WEAKENING STATES AND A NATIONAL

GOVERNMENT OF EVER-INCREASING STRENGTH. I ALSO ASSERT

THAT ALMOST ALL OF OUR PEOPLE KNOW THAT THE STATES HAVE

BEEN SLIPPING FOR A VERY LONG TIME; AND THAT MOST OF THOSE -

WHO HAVE FIXED STATE POLICY -- JUST DON'T CARE,

THIS HISTORY OF THIS COUNTRY CONTAINS MULTIPLE POINTS

WHICH HAVE MARKED THAT SLIPPAGE, EVEN THOUGH THE TREND

HAS BEEN ALMOST UNIFORMLY DOWN,

THE FIRST SUCH POINT WAS

THE ADOPTION OF THE UNITED STATES CONSTITUTION ITSELF.

THE ARTICLES OF CONFEDERATION HAD LOOSELY BOUND THE FORMER

COLONIES TOGETHER AS INDEPENDENT SOVEREIGNS, WITH VERY

LITTLE AUTHORITY GIVEN TO THE CENTRAL GOVERNMENT, THIS

ORGANIZATION PROVED COMPLETELY UNWORKABLE AND THUS THE

o<.

-7-

NEED FOR A NEW CONSTITUTION SOON BECAME EVIDENT.

THE FRAMERS OF THE CONSTITUTION KNEW THEN -- AS WE

DO NOW -- THAT THE NEW NATION NEEDED A STRONG CENTRAL

GOVERNMENT WITH CENTRAL AUTHORITY,

THOSE OF US WHO

BELIEVE THAT THE STATES SHOULD REASSUME THEIR ROLES AS

EQUAL PARTNERS WITH THE NATIONAL GOVERNMENT STILL

RECOGNIZE THAT AS BEING AN ESSENTIAL INGREDIENT TO

SURVIVAL AS A NATION. WE RECOGNIZE THAT THE FEDERAL

UNION AS A WHOLE, THROUGH ITS CENTRAL GOVERNMENT, MUST

BE STURDY, VIGOROUS, AND INDESTRUCTIBLE, BUT EVEN SO,
/

THERE ARE MANY OF US WHO CONTINUE TO BELIEVE -- AS DID

THE FOUNDING FATHERS -- THAT THE STATES, WHILE SUBORDINATE;

SHOULD RETAIN BOTH STRENGTH AND A SEPARATE GOVERNMENTAL

-8-

IDENTITY. WHEN THE FEDERAL CONSTITUTION WAS FINALLY

WRITTEN AND ADOPTED, IT PROPERLY DID AWAY WITH THE

PROVISIONS CONTAINED IN THE OLD ARTICLES OF CONFEDERATION

THAT PROVIDED THAT EACH STATE RETAIN ITS FREEDOM AND

INDEPENDENCE. INSERTED INSTEAD, ALMOST AS AN AFTERTHOUGHT,

THE TENTH AMENDMENT RESERVED TO THE STATES THOSE POWERS

NOT DELEGATED EXPRESSLY TO THE NATIONAL GOVERNMENT.

OTHER. EVENTS SINCE THE ADOPTION OF THE CONSTITUTION

HAVE SERVED TO FURTHER WEAKEN THE POWER OF THE INDIVIDUAL

STATES, THE CIVIL WAR OBLITERATED THE ULTIMATE WEAPON OF

THE INDIVIDUAL STATE -- SECESSION -- TO THE BENEFIT OF THE

NATION AS A WHOLE BUT -- NEVERTHELESS -- WITH A RESULTANT

DIMINISHMENT IN PUBLIC ESTEEM TO THE STATES. OF EVEN

-9-

GREATER SIGNIFICANCE -- FAR MORE THAN WAS REALIZED,

UNDERSTOOD OR CONTEMPLATED AT THE TIME -- WAS THE ADOPTION

OF THE SIXTEENTH AMENDMENT -- GIVING TO THE NATIONAL

GOVERNMENT IN 1913 -- WHAT PROVED TO BE THE MOST POWERFUL

ADVANTAGE OF ALL -- THE INCOME TAX AND THE ULTIMATE POWER

OF THE PURSE

IN THE EARLY 1930s, THE DEPRESSION LITERALLY PARALYZED

THE STATES, AND THE NATIONAL GOVERNMENT WAS FINANCIALLY IN

A POSITION TO MOVE INTO THE GOVERNMENTAL VOID OCCASIONED

BY THAT COLLAPSE, THE ECONOMIC DISASTER WAS SO MASSIVE

THAT THE STATES COULDN'T FEED THE HUNGRY.

COULDN'T COMBAT UNEMPLOYMENT.

THE STATES

THE STATES SIMPLY FELL

APART, RENEGING ON ALMOST ALL OF THEIR GOVERNMENTAL

-10-

RESPONSIBILITIES, SINCE THE STATES HAD NO FINANCIAL

MEANS FOR BOOSTING THE ECONOMY -- NO MEANS FOR SAVING

THEIR BANKS -- NO MEANS OF SECURING FULL EMPLOYMENT --

NO MEANS TO FEED THEIR POOR -- THE PEOPLE TURNED TO THE

NATIONAL GOVERNMENT.

IT MATTERED NOT THAT THE STATES COULD NOT BE HELD

RESPONSIBLE FOR THE ECONOMIC COLLAPSE WHICH -- IN MY OWN

PERSONAL OPINION -- HAD BEEN CAUSED PRIMARILY BY AN

INACTIVE AND INATTENTIVE FEDERAL GOVERNMENT. BUT WHAT

IS IMPORTANT IS THAT IN THAT TIME OF TREMENDOUS STRESS -

THE PEOPLE TURNED AAML EBQM THE STATES AND TO. THAT NATIONAL

GOVERNMENT -- TURNED TO 'WASHINGTON, D, C. TO CORRECT THE

PROBLEMS THEY ALL FACED. AND THE FEDERAL GOVERNMENT

-11-

RESPONDED -- IT DID SOMETHING -- OR AT LEAST IT TRIED VERY

HARD TO DO SOMETHING WHILE THE STATES WERE POWERLESS EVEN

TO TRY.

IT WAS ONLY THROUGH THE FEDERAL GOVERNMENT -- OR SO

IT WAS FELT BY ALMOST ALL AMERICANS AT THAT TIME -- THAT

STRONG ACTIONS WERE TAKEN TO ALLEVIATE THE WIDESPREAD

MISERY AND TO REBUILD THE WRECKAGE OF OUR TOTAL ECONOMY.

NOBODY TRUSTED THE STATES AT THAT TIME, MOST FELT THE

STATES WERE TOTALLY BEHOLDEN TO THE SPECIAL INTERESTS.

THE STATES -- EVEN TO THIS DAY -- HAVE NOT RECOVERED IN

WHOLE THE TRUST THEY THEN LOST. So THE ORDEAL OF THE

GREAT DEPRESSION WAS A TREMENDOUSLY DAMAGING BLOW TO THE

STATES -- THE NEW DEAL LED TO THE FAIR DEAL -- AND THEN

-12-

TO THE GREAT SOCIETY. NO ONE EVEN SEEMED TO MOURN THE

PASSING OF THE SOVEREIGN STATES INTO POLITICAL EUNICHS --

INTO LIMITED PARTNERS -- RESTRICTED AND WEAK -- ALMOST

WHOLLY DEPENDENT ON THE NATIONAL FEDERATION WHICH THEY

HAD SO LONG AGO ESTABLISHED AS THEIR GENERAL PARTNER,

SINCE THAT TIME, THE SECOND-CLASS STATUS OF THE

STATES IN RELATION TO THE FEDERAL GOVERNMENT HAS BEEN

HEIGHTENED BY UNSYMPATHETIC POLITICAL SCIENTISTSj NEWS MEDIA

COMMENTATORS, AND CHAMPIONS OF THE NATIONAL GOVERNMENT,

THEY

HAVE REPEATEDLY ATTACKED THE STATES AS BEING A USELESS

APPENDAGE ON THE BODY POLITIC, AND ONE WHICH WAS USED

PRIMARILY BY THE SPECIAL INTERESTS TO GAIN A GOVERNMENTAL

ADVANTAGE. IN MANY RESPECTS, OUR CITIZENS DO NOT NOW LOOK

-13-

TO THEIR STATE GOVERNMENTS FOR ASSISTANCE IN MULTIPLE AREAS

OF GOVERNMENTAL ACTIVITY.

THEY CONTINUE TO TURN THEIR EYES

TO WASHINGTON FOR ALL OF THEIR GOVERNMENTAL NEEDS, EVEN

THOUGH MANY -- IF NOT MOST -- OF THOSE NEEDS COULD BE MORE

EFFECTIVELY HANDLED AT THE STATE LEVEL.

THEY FEEL -- OR

SEEM TO FEEL -- THAT ONLY THROUGH THE FEDERAL GOVERNMENT

CAN MANY OF THEIR LEGITIMATE GRIEVANCES BE ASSAUGED -- OR

AT LEAST -- THAT THE FEDERAL GOVERNMENT IS THE ONLY

GOVERNMENT WHICH CARES.

BUT PERHAPS THE TIDE IS TURNING -- PERHAPS THE TREND

OVER THE PAST SIX TO EIGHT YEARS HAS MOVED SLIGHTLY TOWARD

STATE RIGHTS AND STATE VIABILITY.

IT SEEMS SO TO ME. ALL

OVER AMERICA PEOPLE ARE BEGINNING TO REEVALUATE THE

-14-

IMPORTANCE OF THE STATES IN OUR FEDERAL SYSTEM.-

I SUGGEST

THAT THIS HAS OCCURRED BECUASE SO VERY MANY OF OUR PEOPLE,

FOR THE FIRST TIME, HAVE BECOME CONCERNED ABOUT THE LONG-RANGE

FUTURE OF THIS COUNTRY -- AND ABOUT THE FUTURE OF THE

GOVERNMENTAL PROCESSES WHICH FOR SO LONG WERE ACCEPTED

WITHOUT QUESTION. FOR TOO LONG, WE HAVE FELT THAT OUR

GOVERNMENT WAS SIMPLY GOOD -- THAT IT WAS BOUND TO SUCCEED

WITHOUT CITIZEN EFFORT OR INPUT.

BUT MANY PEOPLE NO LONGER ARE WILLING TO LET

GOVERNMENT DEVELOP, GROWj OR OPERATE AS IT WILL.

THEY

RECOGNIZE THAT WITH ALL OF THE BROAD BENEFITS FURNISHED

NOW FOR MANY YEARS BY THE FEDERAL GOVERNMENT, WE STILL

HAVE NOT LIFTED THE BURDEN OF ECONOMIC POVERTY FROM THE

-15-

BACKS OF THE DISADVANTAGED AND THE UNEDUCATED IN OUR

SOCIETY.

THEY RECOGNIZE THAT THE RICHEST NATION THE WORLD

HAS EVER KNOWN HAS BEFORE IT -- AT THIS DAY -- AND AT THIS
/

TIME -- PERHAPS THE MOST SUBSTANTIAL PROBLEMS IT HAS EVER

FACED.

THEY RECOGNIZE THAT, DESPITE YEARS OF WORK BY THE

FEDERAL GOVERNMENT IN ALL SPHERES OF ECONOMICS,.WE STILL

HAVE DIFFICULT AND GROWING ECONOMIC PROBLEMS.

THEY

DESPAIR THAT DESPITE MASSIVE FEDERAL PROGRAMS IN THE AREAS

OF WELFARE, PUBLIC HOUSING, PUBLIC HEALTH/ AND OLD AGE
/

ASSISTANCE, WE STILL HAVE GREAT SEGMENTS OF OUR POPULATION

ILL-HOUSED, ILL-NOURISHED, AND ILL-CLAD, THEY SEE THAT

OUR URBAN PROBLEMS, OUR ENVIRONMENTAL PROBLEMS, OUR

-16-

ENERGY PROBLEMS, OUR POLICE AND JUSTICE PROBLEMS, ARE

ALL-PERVASIVE AND ENCOMPASSING -- AND, DESPITE FEDERAL

ACTION, ARE VERY FAR FROM CORRECTION, IT IS UNDENIABLY

TRUE -- THAT FOR ALL THEIR CLEVERNESS -- THE FEDERAL

PROGRAMS SIMPLY HAVE NOT REACHED FAR ENOUGH, OR EFFECTIVELY

ENOUGH, OR WITH SUFFICIENT FLEXIBILITY, FULLY TO MEET THE

NEEDS THEY WERE DESIGNED TO MEET -- AND I DOUBT THAT THEY

EVER CAN, GIVEN OUR EXISTING GOVERNMENTAL THOUGHT PROCESSES,

IT IS MY PERSONAL OPINION THAT OUR SYSTEM OF GOVERNMENT

IS FAILING TO WORK AS WE HAD HOPED, PRIMARILY BECAUSE WE

HAVE ALLOWED TOO MUCH POWER AND DECISION TO BE MOVED INTO

ONE CENTRAL PLACE MORE TO THE POINT/ THAT WE HAVE FAILED

PROPERLY TO USE THE 50 OTHER SOURCES OF POLITICAL POWER

-17-

CONTEMPLATED IN THE CONSTITUTION OF THE UNITED STATES,

RELYING ALMOST WHOLLY ON THE ONE CENTRAL GOVERNMENT, I

SUBMIT, AS A FIRM BELIEF, THAT WE CANNOT MUCH LONGER ENDURE

AS A STRONG AND PURPOSEFUL NATION WITHOUT EFFECTIVE,

MEANINGFUL STATE GOVERNMENTS, WE MUST HAVE VIABLE STATES --

OTHERWISE,, THERE IS NO FEDERAL SYSTEM -- OTHERWISE, OUR

RELIANCE ON GOVERNMENT IS RELEGATED STRICTLY TO A

GOVERNMENT FAR, FAR REMOVED FROM THE PEOPLE/ AND TODAY,

AS NEVER BEFORE -- YES -- AS NEVER BEFORE -- ISOLATED FROM

THE BULK OF OUR CITIZENS.

NOW THERE ARE, FOR THE FIRST TIME IN MORE THAN ONE

HUNDRED YEARS MANY GOVERNMENTAL LEADERS -- MANY SCHOLARS

AND POLITICAL SCIENTISTS -- WHO BELIEVE THAT STRONG STATE

-18-

GOVERNMENTS ARE THE ULTIMATE SALVATION OF THIS COUNTRY,

ONE CAN SEE AND FEEL THE RESURGENCE IN STATE GOVERNMENT,

AND IF HE BELIEVES THAT VIABLE AND VIGOROUS STATES ARE

ESSENTIAL TO OUR FEDERAL SYSTEM, HE IS FILLED WITH HOPE,

TERMS SUCH AS "CREATIVE FEDERALISM" AND "THE NEW

FEDERALISM" ARE BANDIED AROUND BY MANY AS IF A NEW --

RADICAL -- AND INNOVATING IDEA HAS BEEN DEVELOPED WHEN --

IN TRUTH AND FACT -- ALL THAT IS HAPPENING IS THAT MANY

OF OUR LEADERS ARE NOW TRYING TO MAKE THE OLD, ORIGINAL

FEDERAL SYSTEM WORK THE WAY IT WAS INTENDED TO WORK,

THERE IS NO NEED FOR A NEW FEDERALISM -- THERE IS

A NEED FOR A REAL VIABLE FEDERAL SYSTEM, AS OUR FOREFATHERS

INTENDED IT TO BEJ AND -- IF WE CAN OBTAIN THAT SYSTEM BY

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


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