Speeches by Chesterfield - Vol. XII, 172-181. 1967, 1977

VOLUME XII

SPEECH NUMBER TITLE OR GROUP ADDRESSED

#172 CHESTER BEDELL CITATION
FIFTY YEAR AWARD/AMERICAN BAR FOUNDATION
February 19, 1977
Seattle, Washington
ABA Mid-year Meeting

#173 "DISSENT AND THE LAW SINCE THE SIXTIES"
University of South Florida Symposium
(Violence, Violation and the Sixties)
University of South Florida
St. Petersburg Auditorium
February 23, 1977

#174 "THE PROBABLE EFFECT OF THE GOLDFARB
DECISION ON THE MEDICAL AND LEGAL
PROFESSIONS"
March 20, 1977
Fairmont Hotel
San Francisco, California
1977 National Medicolegal Symposium,
Jointly Sponsored by the ABA/AMA

#175 REMARKS BY CHESTERFIELD SMITH
"ETHICAL PROBLEMS OF LARGE LAW FIRMS"
ALI/ABA COMMITTEE ON CONTINUING
PROFESSIONAL EDUCATION (DEAN T. VOORHEES)
Washington, D. C.
April 22 and April 23, 1977

#176 "RANDOM THOUGHTS ABOUT RECERTIFICATION,
SPECIALIZATION AND CONTINUING LEGAL
EDUCATION"
University of Florida Law School
John Marshall Bar Association
Law Week Program
Gainesville, Florida
April 28, 1977

VOLUME XII (Continued)

SPEECH NUMBER

REMARKS BY CHESTERFIELD SMITH
"WHAT IS A JUDGE"
INVESTITURE OF THE HONORABLE
WILLIAM M. HOEVELER
Miami, Florida
May 26, 1977

REFER TO SPEECH #10
(Edited Transcript of Extemporaneous
Comments Made from the Floor of
the Convention: Florida Constitution
Revision Commission)
Above remarks used at time of
extemporaneous speech
LEAGUE OF WOMEN VOTERS CONVENTION
Riverside Hilton Hotel, Tampa
June 7, 1977

COMMENCEMENT ADDRESS
WESTERN STATES UNIVERSITY
COLLEGE OF LAW
SAN DIEGO, CALIFORNIA
June 11, 1977

EXCERPT FROM REMARKS TO
GRADUATING CLASS OF 1977
WESTERN STATES UNIVERSITY
COLLEGE OF LAW
San Diego, California
June 11, 1977

REMARKS BY CHESTERFIELD SMITH
BEFORE: THE FLORIDA CONSTITUTION
REVISION COMMISSION, SENATE
CHAMBER, THE CAPITOL
TALLAHASSEE, FLORIDA
Wednesday, July 6, 1977

REPRINT OF REMARKS BY MR. SMITH
"The Journal of the Florida
House of Representatives" (1/10/67)
EXTRAORDINARY SESSION OF HOUSE
OF REPRESENTATIVES TALLAHASSEE
January 9, 1967
Re: Constitution Revision Commission

#181

(Also a copy in
1967 section
numbered 10 (a)

#177

#178

#179

#179 (a)

#180

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 172

VOLUME XII

MEMORANDUM -- February 9, 1977

TO: File /
FROM: Chesterfi4 [th
RE: Chester Bedell's American Bar Foundation Citation

Chester Bedell's term on the Florida Supreme Court
Nominating Commission ended July 1, 1976. Accordingly, the
citation is in error.

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CHESTER BEDELL

Fellows Fifty-Year Award Recipient

Chester Bedell is an advocate in Jacksonville,

Florida, today as he has always been since his original

admission to The Florida Bar. He was born in Jacksonville,

attended the public schools there, entered the University of

Virginia when he was 16, the University of Virginia Law

School when he was 17, the University of Florida College of

Law when he was 19, and on May 5, 1925 commenced practice

while 20 years of age with his father, George C. Bedell, a

former president of The Florida State Bar Association. As

his father did before him, Chester Bedell has confined

himself throughout his legal career to only trial and

appellate practice. In 1927, when he became a law partner

of his father, he married Edmonia Hair, and together they

reared a fine family -- George, Martha and Donald -- all

now married and who have blessed them'with multiple grandchildren.

Today still a humble and gentle person, Chester

Bedell is the senior partner in the firm of Bedell, Bedell,

Dittmar and Zehmer. Just as George C. Bedell did, .and just

as Chester Bedell always has done, that firm, and each

lawyer in it, confines its and their practice solely to

advocacy. Chester Bedell himself does every possible kind

of trial and appellate work, participating about equally on

both the plaintiff and defense side. Indeed, he is recog-

nized throughout the Southeastern United States as pre-

eminent, both as a trial lawyer and as an appellate lawyer.

As the lawyer for a contending advesary party on one side or

the other, he has practiced extensively in the fields of

criminal law, admiralty law, personal injury law, tax fraud

law, antitrust law, products liability law, patent and trade

secrets law, constitutional law, and professional disci-

plinary law. In fact, he has in his more than fifty years

of practice participated as an advocate in almost every

conceivable factual or legal issue which might properly be

resolved in the courts. He is best known in Florida as the

lawyer's lawyer. Neither Chester Bedell nor his firm have

ever accepted regular or retainer clients, as advocates

perferring-to establish the .attorney-client relationship

only on a case-by-case basis. Even today, the overwhelming

bulk of the legal representation -of both Chester Bedell and

his firm is referred by other lawyers. His more notable

cases include multiple occasions where he successfully

represented a Florida lawyer in serious criminal, civil or

disciplinary trouble.

Chester.Bedell throughout his professional career

has been a devoted, avid and enthusiastic bar worker. At

-2-

the local and state level, he was president of the Jacksonville

Bar Association in 1940. He was-a member of the Executive

Committee and the Board of Governors of The Florida Bar from

1952 to 1954. He was urged at that time by the nominating

committee to accept its nomination to be president of The

Florida Bar, but he was unable to accept that nomination

because of existing professional commitments. In 1967, he

was the organizing chairman of the Trial Lawyers Section of

The Florida Bar. He has been the chairman of the. Florida

Supreme Court Committee on Standard Jury Instructions (civil

cases) for almost fifteen years, serving as a member since

its inception in 1962 and continuing today. He was a prin-

cipal member of the Florida Supreme Court Special Advisory

Committee to make recommendations for the implementation in

Florida of the American Bar Association Standards of Criminal

Justice. He is a founding member and continued to serve until July 1,1976

on the Florida Supreme Court Judicial Nominating Commission.

At the national level, he has been a member of the

Advisory Committee on Federal Criminal Rules to the Judicial

Conference of the United States since 1972. He was a participant

in the National Conference of Appellate Justice in San Diego

in 1975. He served as a member of the Council of the

American Bar Association Section of Criminal Justice from

1971 to 1975. He was a member of the American Bar Association

-3-

Special Committee to Study Federal Law Enforcement agencies

from 1973 to 1976. He is a former member of both the

Advisory Committee on Prosecution and Defense Functions and

the Advisory Committee of Judges Function of the ABA-IJA

Project of Standards of Criminal Justice.

He is a Fellow of the American College of Trial

Lawyers, now serving as a Regent of the College. He also is

a Fellow of the American Bar Foundation, The Florida Bar

Foundation, the International Academy of Trial Lawyers and

the International Society of Barristers. He is an active

member of the American Law Institute, the Association of

Trial Lawyers of America, the Academy of Florida Trial

Lawyers, the Federal Bar Association, the National Association

of Criminal Defense Lawyers, the American Judicature Society,

the National Legal Aid and Defender Association, the Insti-

tute of Judicial Administration, the International Bar

Association, and the Inter-American Bar Association.

Chester Bedell truly has devoted his life to the

law. While serving his community and his profession broadly

and diligently (including a stint with the United States

Navy during World War II), the courtroom has been the focal

point of his professional career. A deeply religious man

with an unyielding pride in and devotion to his family, the

place of happiest action for him has been as an advocate,

before a judge or jury or an appellate tribunal. Chester

Bedell's lifetime principles are those principles of a trial

lawyer, taught him by his father. Now half a century later,

he embodies the highest possible standards of morality,

honesty and justice. He has long embraced and followed the

ethical and professional precepts, practices, manners and

characteristics of a highly proficient English barrister.

He is -- and he long has been a splended advocate effective

but always ethical, forceful yet always scholarly, tenacious

but nevertheless courteous, tolerant yet unyielding in his

personal standards of morality. While slight in stature, he

has proven himself as a man of unlimited durability, unbounded

energy, keen insight, high legal scholarship and sympathetic

humanitarianism. Today as throughout his legal career, he

approaches the law with an unparalleled zest and continuous

quest for excellence. He is calm and "unflappable," but he

cares deeply always for both his client and his cause.

It has been observed that if the approximately

23,000 members of The Florida Bar were permitted to cast a

secret ballot for: (1) the best trial lawyer in Florida;

and (2) the most gracious and ethical gentleman who prac-

tices law in Florida, Chester Bedell, easily and perhaps

overwhelmingly, would be established by that vote-at the top

of each category. Indeed, Chester Bedell today in Florida

-5-

_____ ____ ~CI _____II_

is a living legend in the law, a man who lives by the

ethical precepts which historically have guided the conduct

of the truly great lawyers of our past and present.

By his professional conduct, by his very being,

Chester Bedell epitomizes the best of the American trial

lawyer. After more than fifty years of exemplary practice,

his selection for this prestigious award gives recognition

to those who practice law as it should be practiced a high

calling for the noblest of men.

-6-

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 173

VOLUME XII

-1 / 73

ADDRESS BY:

CHESTERFIELD SMITH
LAWYER
LAKELAND, FLORIDA

BEFORE:

UNIVERSITY OF SOUTH FLORIDA
SYMPOSIUM (VIOLENCE, VIOLATION
AND THE SIXTIES)

PLACE:

UNIVERSITY OF SOUTH FLORIDA
ST. PETERSBURG AUDITORIUM
830 FIRST STREET, SOUTH
ST, PETERSBURG, FLORIDA

DATE:

FEBRUARY 23, 1977
7:30 P.M.

TITLE:

"DISSENT AND THE LAW SINCE
THE SIXTIES"

THIRTY-FIVE MINUTES

TIME:

DURING THE PAST DECADE RICHARD NIXON A

REPUBLICAN-AND LYNDON JOHNSON A DEMOCRAT BOTH CAME TO

ACCEPT THROUGH PERSONAL ANGUISH THAT THE PRESIDENCY

OF THIS MOST STURDY OF ALL FREE NATIONS BELONGS TO THE

PEOPLE NOT TO ANY INDIVIDUAL NOR TO ANY PARTY AND

THAT WHEN A PRESIDENT OF THIS LAND OF THE RUGGED INDIVIDUAL

CANNOT LEAD ITS CITIZENRY HE MUST UNDER THE LAW STAND ASIDE.

THE AMERICAN PEOPLE AND OUR DEMOCRATIC INSTITUTIONS -

REVEALED THEIR MAJESTIC STRENGTH IN BRINGING THIS MESSAGE HOME

TWICE IN SIX YEARS TO TWO MEN EACH OF WHOM HAD WON OVER-

WHELMING VICTORIES IN THEIR PRESIDENTIAL ELECTIONS AND EACH

OF WHOM TOOK HIS TRIUMPH AS A GIFT OF VIRTUALLY UNBRIDLED

EXECUTIVE POWER.

BOTH PRESIDENT NIXON AND PRESIDENT JOHNSON HAD

THE OPPORTUNITY TO RAISE THE HOPES OF THE NATION AND THE

IN RETROSPECT -

PRESIDENT JOHNSON DID SUCCEED

IN ELEVATING THE EXPECTATIONS OF ALL AMERICANS TOWARD EQUAL

PARTICIPATION IN THE BENEFITS OF OUR ROBUST SOCIETY --

PRESIDENT NIXON TOO SUCCEEDED IN GENERATING A CLIMATE IN

WHICH THERE EVEN NOW REMAINS A REAL HOPE THAT INTERNATIONAL

PEACE WILL PREVAIL, BUT

ENGULFED BY THEIR FAILURES.

EVENTUALLY BOTH MEN WERE

ALTHOUGH THEIR TRAGEDIES WERE

CUT FROM DIFFERENT CLOTH EACH HAD THE COMMON THREAD THAT

EXECUTIVE POWER WAS DEEMED THE POWER OF A NATION AND THAT

THE PRESIDENTIAL VOICE COULD DROWN OUT THE VOICES OF DISSENT.

NEITHER PRESIDENCY SURVIVED -- BUT LOOKING BACK -

IT IS CLEAR THAT AMERICAN DEMOCRACY AND THE LAW UPON WHICH IT

IS BUTTRESSED HAS MORE THAN SURVIVED,

AMERICAN DEMOCRATIC

-2-

WORLD,

INSTITUTIONS HAVE BEEN NOURISHED BY THESE TESTS OF STRENGTH,

THE POWER OF THE RULE OF LAW HAS EMERGED TRIUMPHANT AFTER

ITS GREATEST CHALLENGE.

BUT ADMITTEDLY THE TESTS OF

DEMOCRACY AND OF THE RULE OF LAW ARE NEVER ENDED. IT

IS OUR CONTINUING TASK TO REBUILD FAITH IN THE POLITICAL PROCESS

AND THE LAW TO HEAL AND TO FORGIVE TO IMPROVE AND CORRECT.

A PROPER STARTING POINT IS AN ACKNOWLEDGEMENT BY

OUR PEOPLE -- AT LEAST BY THAT SEGMENT DEVOTED TO JUSTICE -

EQUALITY AND FAIRNESS THAT THERE REMAINS SUBSTANTIAL

CRITICISM THROUGHOUT THIS COUNTRY OF OUR JUSTICE SYSTEM BY

MANY CITIZENS.

THE SYSTEM HAS CHANGED AND IS CHANGING -

BUT EVEN MORE CHANGE IS APPARENTLY TO OCCUR SOON.

AS THE LEGAL SYSTEM IS CONCERNED CRITICISM HAS BEEN

PARTICULARLY PREVALENT IN AT LEAST FOUR BROAD

-3-

INSOFAR

GENERAL AREAS THOUGH CERTAINLY NOT EXCLUSIVELY SO;

PERCEIVED FAILURES OF THE CRIMINAL JUSTICE SYSTEM; GROWING

BACKLOGS OF UNRESOLVED CASES BOTH CIVIL AND CRIMINAL;

UNDUE DELAY AND EXPENSE IN THE ADMINISTRATION OF JUSTICE -

PERHAPS NOTICEABLY SO IN THE SO-CALLED "SMALLER" CONSUMER

DISPUTES WHICH ALSO MUST EMBRACE THE PROBLEMS OCCASIONED BY

INADEQUATE OR UNEQUAL LEGAL REPRESENTATION; AND FINALLY A

BELIEF ON THE PART OF MANY THAT COURTS BY THE EXPANSION OF

THEIR JURISDICTION TO ENCOMPASS ALMOST ALL SOCIETAL PROBLEMS

HAVE ARROGATED TO THEMSELVES MATTERS BEYOND THEIR COMPETENCE

SATISFACTORILY TO HANDLE -- IN OTHER WORDS THAT THE COURTS

BY THEIR OWN MANDATE HAVE GROWN TOO BIG FOR THEIR SYSTEMIC

BRITCHES,

____ ___~I~____I ___~~__~_~_~__~ _~~ _~ __~__~ _~_~ ~~~__ ~~_ ~~__~

ALTHOUGH THE VIOLENCE AND TURBULENCE OF PAST

YEARS HAS SUBSIDED THE PAST HAS BEEN DEMONSTRATED TO BE

ONLY PROLOGUE,

WE DO CONTINUE NOW TO FACE THE SPECTER OF

DISTURBANCE AND TRADED IN OUR CITIES AND IN OUR RURAL

AREAS AS WELL.

ALREADY KNOW:

THE LATEST FBI FIGURES CONFIRM WHAT WE

AFTER EIGHT OR NINE YEARS OF NATIONAL

PREOCCUPATION WITH "LAW AND ORDER" THE CRIME RATE REMAINS

DISTURBINGLY HIGH.

AND OMINOUS WARNINGS ABOUND FOR THE

FUTURE,

WHILE WHITE COLLAR CRIME IS OF COURSE AN EVER

INCREASING CONCERN OUR DEEPEST TROUBLE EVEN TODAY OBVIOUSLY

CONTINUES TO BE STREET CRIME WHICH INSTILLS FEAR FOR OUR

SAFETY ON THE STREETS AND IN OUR HOMES.

SIGNIFICANTLY ALMOST

ALL THE PERPETRATORS OF STREET CRIMES COME FROM THE BOTTOM

OF THE SOCIO-ECONOMIC-CULTURAL LADDER FROM AMONG THE

IGNORANT THE ILL EDUCATED THE UNEMPLOYED AND OFTEN

UNEMPLOYABLE,

NOR IS THIS A COINCIDENCE FOR THE MAJOR CAUSES

OF STREET CRIME LIE IN THE GAP BETWEEN OUR DECAYING CITIES

AND THE EXPECTATIONS AND ASPIRATIONS OF THE POOR PEOPLE WHO

HAVE TO LIVE IN THEM.

BORN AND RAISED IN A SOCIETY THAT

BRAGGED OF ITS PLENTY AND NEVER CEASED TO STRESS THE IMPORTANCE

OF SUCCESS THE POOR HOLD THE SAME DREAMS AND HOPES THAT

WE ALL HOLD,

BUT BORN INTO FAMILIES OVERWHELMED BY THE

STRUGGLE FOR SURVIVAL AND LACKING THE RESOURCES TO NUTURE

THEM RAISED IN DILAPIDATED OVERCROWDED HOUSING DENIED

PROPER NOURISHMENT AND ADEQUATE MEDICAL CARE SUBJECT TO

PREDJUDICE AND HATRED AND EDUCATED IN SCHOOLS UNRESPONSIVE

-6-

TO THEIR NEEDS THEY GREW UP LACKING THE SKILLS NECESSARY TO

SUCCEED.

OF COURSE POVERTY AND DEPRIVATION DO NOT

NECESSARILY PRODUCE CRIME,

JUST AS RACIAL DISCRIMINATION -

VIETNAM OR WATERGATE IN THEIR TIME DID NOT NECESSARILY

CAUSE CRIME BY NON-PARTICIPANTS,

THE VAST MAJORITY OF THE

POOR TODAY AFTER ALL ENGAGE IN NO CRIMINAL CONDUCT,

MAY SAFELY PREDICT THAT EVEN IN A PERFECTLY JUST SOCIETY

SOME VIOLENT CRIMES WOULD CONTINUE TO OCCUR,

NEVERTHELESS -

SOCIAL DEPRIVATION IS A NECESSARY IF NOT SUFFICIENT CAUSE OF

CRIME,

INDEED THE CRIME PROBLEM WOULD BE EASIER TO

CONFRONT IF SOCIAL DEPRIVATION WERE NOT AT ITS ROOT, IF

BAD PEOPLE CAUSED CRIME LOCKING THEM UP WOULD BE A SIMPLE

-7-

ONE

OR IF LAX ENFORCEMENT OF THE LAWS WERE THE

CAUSE TOUGHER AND TOUGHER ENFORCEMENT MEASURES WOULD BE

THE ANSWER.

BUT THE DIFFICULTY OF ERADICATING SOCIAL

DEPRIVATION IS NO REASON FOR IGNORING ITS CRITICAL RELATION-

SHIP TO OUR NATIONAL CRIME EPIDEMIC.

THE PROBLEM CAN ONLY

BE EXACERBATED IF WE IGNORE ITS MAJOR CAUSE.

ELIMINATING THE INJUSTICES AND INEQUALITIES IN

THE CRIMINAL JUSTICE SYSTEM IS NO GUARANTEE THAT THE CRIME

RATE WILL BE REDUCED,

NOR WILL THE ELIMINATION OF

POVERTY AND OPPRESSION GUARANTEE A SOLUTION TO THE CRIME

PROBLEM AT LEAST IN THE SHORT RUN.

BUT SOCIETY DARE NOT

DEMAND A COST-BENEFIT JUSTIFICATION FOR PROVIDING THE POOR -

OFFENDER AND OFFENDED WITH EQUAL TREATMENT BEFORE THE LAW -

OR FOOD CLOTHING HOUSING EDUCATION AND JOBS.

THERE

-8-

SOLUTION,

REMAIN NECESSARY GOALS FOR ANY HUMANE SOCIETY IN THE SIXTIES -

IN THE SEVENTIES AND IN THE FUTURE.

OVER THE PAST EIGHT OR TEN 'LAW AND ORDER" YEARS -

WE HAVE WITNESSED BEEFED-UP POLICE DEPARTMENTS WE HAVE

ADDED MORE COURTS AND MORE JUDGES WE HAVE IMPROVED PRISONS AND

CORRECTIONAL FACILITIES WE HAVE BEGUN TO INSERT MODERN

MANAGERIAL TECHNIQUES IN OUR COURTS AND IN THE OFFICES OF

OUR PROSECUTORS DEFENDERS AND OTHER COURT SUPPORT PER-

SONNEL WE HAVE INSTALLED COMPUTERS FOR CALENDAR CONTROL -

WE HAVE DEVOTED MORE TAX DOLLARS TO THE JUDICIAL BRANCH OF

GOVERNMENT THAN EVER BEFORE IN OUR HISTORY,

WE HAVE

CREATED TO ADVISE US ON IMPROVEMENTS IN THE COURTS -

THE NATIONAL CENTER FOR STATE COURTS THE FEDERAL JUDICIAL

CENTER THE NATIONAL COLLEGE OF STATE TRIAL JUDGES -

-9-

THE INSTITUTE FOR COURT MANAGEMENT AND MULTIPLE SIMILAR

ORGANIZATIONS,

SINCE 1968 THE FEDERAL GOVERNMENT -

THROUGH ITS LAW ENFORCEMENT ASSISTANCE ADMINISTRATION -

HAS PROVIDED GRANTS IN AID TO STRENGTHEN STATE AND LOCAL

ADMINISTRATIVE OPERATIONS IN CRIMINAL JUSTICE AND LAW

ENFORCEMENT.

EACH OF THOSE STEPS HAS BEEN BENEFICIAL AND

DESERVES OUR CONTINUED SUPPORT BUT UNFORTUNATELY THE

HARD FACT OR SO IT SEEMS TO ME IS THAT THE COMBINED

AND OFTTIMES IMPRESSIVE EFFORTS OF ALL LEVELS OF GOVERN-

MENT HAVE FAILED TO CURB RISING TIDES OF CRIME OR TO

ALLEVIATE WIDESPREAD INJUSTICES WHICH CONTINUE TO PREVAIL

THROUGHOUT OUR LAND.

CERTAINLY IT IS NOT ACCEPTABLE TO

THE AVERAGE CITIZEN SIMPLY TO POINT OUT TO HIM THAT OUR

EFFORTS MAY HAVE MITIGATED THE RATE OF INCREASE IN SERIOUS CRIMES

-10-

WHICH WOULD OTHERWISE HAVE OCCURRED OR TO SAY THAT OUR

CHANCES OF BEING THE VICTIMS OF CRIMINAL VIOLENCE AT

THIS TIME ARE NOT AS GREAT AS SEVERAL YEARS AGO WE HAD FEARED

THEY WOULD BE BY NOW.

WE NEED TO BE ABLE TO TELL THAT

CITIZEN AND HIS FAMILY THAT CRIMINAL VIOLENCE AND

CRIMINAL ACTIVITY IS ACTUALLY DIMINISHING WE CANNOT IN ANY

HONESTY NOW DO SO.

IN THE FINAL ANALYSIS WHAT IS INVOLVED IN A

PRESENT DETERMINATION OF A PROPER CONTINUING RESPONSE TO THE

CRIME PROBLEM IS NOTHING LESS THAN DETERMINING WHAT IS OUR

TOTAL CONCEPT OF JUSTICE.

TOTAL JUSTICE IS NOT ESTABLISHED

MERELY BY CREATING AN EFFICIENT AND EFFECTIVE JUSTICE SYSTEM

NOR SIMPLY BY ELIMINATING THE INEQUITIES IN OUR CRIMINAL SYSTEM.

IMPORTANT AS THOSE GOALS ARE THEY DO NOT OBVIATE THE NEED TO

ESTABLISH SOCIAL JUSTICE BASED ON EQUALITY OF OPPORTUNITY AND
-11-

IN THE PAST OUR MORALITY MAY HAVE

ALLOWED US TO IGNORE THE ROLE OF SOCIAL JUSTICE AS A

NECESSARY COMPONENT OF CRIMINAL JUSTICE.

NO LONGER

CAN THE LAW BE BUTTRESSED ON THE RACK THE SCREW AND THE

WHEEL BECAUSE THIS NATION NOW KNOWS THAT ITS LAW MUST

ONLY BE BASED ON "MORAL CONCEPTS".

IT HAS BEEN MY EXPERIENCE DURING THE PAST SEVERAL

YEARS INCLUDING THE SIXTIES AND SEVENTIES FOR NON-LAWYER

CITIZENS TO GRIPE TO ME AGAIN AND AGAIN THAT THE COURTS OF

TODAY ARE WITHOUT PORTFOLIO OR AUTHORITY RUNNING SCHOOLS

AND PRESCRIBING CURRICULA MANAGING PRISON SYSTEMS FORMULATING

BUDGETS AND REGULATING THE ENVIRONMENT.

THE COMPLAINTS OF

THOSE NON-LAWYER CITIZENS HAVE BEEN DIRECTED PRIMARILY AT TRIAL

COURTS THOUGH CERTAINLY NOT EXCLUSIVELY SO,

INDEED IN

-12-

TREATMENT FOR ALL,

THEIR EYES ALL COURTS BOTH TRIAL AND APPELLATE STATE

AND FEDERAL SOON RUN TOGETHER AS A GENERIC ENTITY,

BOTH

STATE AND FEDERAL ARE SUSPECT.

BUT OF COURSE THAT LAY VERSION OF WHAT COURTS ARE

DOING WRONG MAY CONCEAL MORE THAN IT REVEALS,

IT SEEMS

TO ME THAT IN VIRTUALLY ALL OF THE CASES IN WHICH COURTS

HAVE ENTERED AREAS THAT MORE PROPERLY AND MORE EFFECTIVELY

CAN BE DEALT WITH IN THE OTHER BRANCHES OF GOVERNMENT -

THE COURTS HAVE DONE SO BY REASON OF THE DEFAULT OF THE

LEGISLATIVE AND THE EXECUTIVE DEPARTMENTS.

IF A JUDGE MUST IkNSPECT THE OPERATING CONDITIONS

OF A PRISON A HOSPITAL OR A WELFARE OFFICE TO DETERMINE

WHETHER CONSTITUTIONAL STATUTORY OR COMMON LAW RIGHTS

ARE BEING INVADED WHAT ELSE CAN SHE OR HE DO BUT PERFORM

-13-

AND IF SHE OR HE FINDS THE RIGHTS ARE

BEING ABRIDGED WHAT ELSE CAN SHE OR HE DO BUT SEEK TO

CORRECT THE ABUSES?

AS A LAWYER I BELIEVE WITHOUT

RESERVATION THAT MOST OF THE LITIGATION FOR SOCIAL CHANGE

IN RECENT YEARS OCCURRED BECAUSE IT PROVIDED THE ONLY WAY

TO SATISFY THE JUST ASPIRATIONS OF THOSE WHO WERE UNABLE TO

GET THINGS DONE WHICH SHOULD HAVE BEEN DONE THROUGH OTHER

CHANNELS OF GOVERNMENT.

I SUGGEST THAT WE AS A PEOPLE

SHOULD BE GRATEFUL THAT OUR FORM OF GOVERNMENT HAS HAD THE

RESILIENCE AND CREATIVITY TO RESPOND IN THIS WAY TO THE

LEGITIMATE NEEDS OF SOCIETY.

SO BEFORE APOLOGIZING TOO MUCH FOR THIS

PARTICULAR AREA OF PERHAPS JUSTIFIED PUBLIC CARPING AT THE

COURTS IT SEEMS TO ME THAT THE CAUSE TODAY OF MUCH OF THAT

-14-

HER OR HIS DUTY?

ADVERSE COMMENT ABOUT JUDGES AND COURTS SPRINGS MORE FROM

THE PAST SUCCESSES OF OUR JUSTICE SYSTEM THAN ITS FAILURES,

THE TRUTH IS THAT THE COURTS IN THE MAIN HAVE PERFORMED

WELL -- PERHAPS TOO WELL.

NEVERTHELESS AS A MEANS OF PERIODIC STOCK-

TAKING WE SHOULD PERHAPS ACKNOWLEDGE THAT THERE IS A

BURGEONING BELIEF THAT:

QUANTITATIVELY THE COURTS ARE

CARRYING TOO HEAVY A BURDEN -- AND PROBABLY A BURDEN BEYOND

THE CAPACITY OF MITIGATION BY MERELY INCREASING THE NUMBER

OF JUDGES; AND QUALITATIVELY THE COURTS ARE BEING ASKED

TO SOLVE PROBLEMS FOR WHICH THEY ARE NOT INSTITUTIONALLY

EQUIPPED OR AT LEAST NOT AS WELL EQUIPPED AS OTHER AREAS

OF GOVERNMENT.

ADMITTEDLY AMERICAN JUDICIAL HISTORY DOES REVEAL

-15-

A PATTERN OF PROGRESSIVE JUDICIAL ACTIVISM, RARELY NOW DO

WE SEE OUR COURTS GOING ALL OUT TO CONFINE THE IMPACT OF A

CONSTITUTIONAL OR STATUTORY DECISION ONLY TO THE CASE AT HAND.

JUDICIAL RESTRAINT MAY WELL BE NOW PRIMARILY TWO WORDS TO

WHICH MOST JUDGES PAY LIP SERVICE BUT TO WHICH THEY DO NOT

RENDER TRUE FEALTY.

DURING THE PERIOD OF THE SIXTIES AND

THE SEVENTIES OUR COURTS INCREASINGLY HAVE BEEN SOLICITED

BY THOSE OTHERWISE UNABLE TO SECURE RELIEF TO BECOME THE

PROBLEM-SOLVERS OF OUR SOCIETY,

NO PROBLEM NOW SEEMS TO

BE BEYOND THE DESIRE OF THE AMERICAN PEOPLE TO ENTRUST IT FOR

SOLUTION TO THE COURTS.

THE REASONS FOR THIS DERIVE BOTH

FROM THE CHARACTER OF OUR LEGAL SYSTEM AND FROM THE SOCIAL

AND POLITICAL ENVIRONMENT IN WHICH OUR COURTS FUNCTION. IT

IS QUITE EASY TO DOCUMENT SUPPORT FOR THE PROPOSITION THAT THE

-16-

AMERICAN PUBLIC TODAY IN 1977 PERCEIVES COURTS AS JACKS-

OF-ALL-TRADES AVAILABLE TO FURNISH THE ANSWER TO WHATEVER

MAY TROUBLE US.

CERTAINLY THERE IS A PUBLIC READINESS TO LOOK TO

JUDGES MORE THAN THE LEGISLATURE OR THE EXECUTIVE FOR

SOLUTIONS TO THE MOST DIFFICULT PUBLIC PROBLEMS,

PERHAPS

THAT IS SO BECAUSE AMERICAN LEGAL HISTORY DEMONSTRATES THAT LOGIC -

AND UTILITY AND THE ACCEPTED STANDARDS OF RIGHT CONDUCT ARE

THE FORCES WHICH SINGLY OR IN COMBINATION HAVE OVER THE YEARS

SHAPED THE PROGRESS OF OUR EVOLVING LAW,

IT HAS BEEN

SUGGESTED THAT JUDGES AND LAWYERS MIGHT WELL CONGRATULATE

THEMSELVES UPON THAT PUBLIC ATTITUDE AND IN FACT TO TERM IT

A SIGN OF "PUBLIC ACCEPTABILITY" WITH THE ADMINISTRATION OF

JUSTICE,

BUT THOSE OF US WHO MAKE OUR LIVING BY WORKING

-17-

IN THE JUSTICE SYSTEM WOULD BE MYOPIC TO ENGAGE IN SUCH SELF-

ADULATION.

WE MUST ACKNOWLEDGE THAT THE PROBLEMS WHICH THE

COURTS ARE BEING ASKED TO SOLVE SIMPLY ARE BEYOND THEIR CAPACITY -

AND PERHAPS BEYOND ANY CAPACITY WE MAY GRANT TO THEM. WE

MUST ACKNOWLEDGE THAT THE MOST INFLUENTIAL FACTORS WHICH

PERVADE LAW-MAKING BY THE COURTS ARE ESSENTIALLY BEYOND THE

CONTROL OF EITHER LAWYERS OR JUDGES.

I MUST POINT OUT TOO

THAT THE RESULT IS NOT NECESSARILY A PUBLIC DISSATISFACTION

WITH THE KIND OF JUSTICE THAT THOSE ACTIVITIES NECESSARILY

IMPORT; THAT DISSATISFACTION IS INSTEAD OCCASIONED PRIMARILY

BY A FRUSTRATION THAT OTHER GOVERNMENTAL INSTITUTIONS BETTER

QUALIFIED THAN THE COURTS TO ACT HAVE NOT DONE SO,

IT IS THUS MY PHILOSOPHICAL THESIS THAT OUR PEOPLE

SOON MUST DECIDE AS A MATTER OF SOCIAL PRINCIPLE WHETHER OUR COURTS

-18-

SHALL CONTINUE ONLY TO DISCHARGE THEIR TRADITIONAL ROLE AS

DISPUTE-RESOLVERS OR ALSO BECOME.THE PROBLEM-SOLVERS OF

SOCIETY,

WHEN GENERALLY IN DAYS PAST OUR JUDGES FOLLOWED.

THE PRINCIPLE THAT INSOFAR AS POSSIBLE THE DECISION IN A

CONTROVERTED MATTER AT HAND SHOULD DIRECTLY AFFECT ONLY THE

PARTIES TO THE DISPUTE THE ADVERSARY SYSTEM OF THE COMMON

LAW AS A DISPUTE-RESOLVER SEEMED TO ME TO BE CHUGGING ALONG

AT ITS BEST,

A JUDICIAL DECISION BY THE FORCE OF PRECEDENT

OR BY THE PRINCIPLE OF STARE DECISIS DID INDIRECTLY AFFECT

OTHER DISPUTES WITH A FACTUAL OR LEGAL SIMILARITY -- BUT THAT

DECISION WAS NOT THE SAME AS THE FORCE OF A JUDGMENT.

WAS NOT RES JUDICATA BUT AT MOST ONLY STARE DECISIS,

IT

EACH

-19-

-~II-- ----- -- -- ---- ----- ------------ --- ----.1.~. ..I..~..._.

NEW DECISION THUS WAS ONLY A SMALL TILE IN A GREAT MOSAIC -

THE DESIGN OF WHlIH CHANGED SUBTLY AND GRADUALLY AND THUS

AVOIDED THE DISASTERS WHICH FREQUENTLY OVERTOOK THOSE WHO

DROVE PRINCIPLES TO THE EXTREME END OF THEIR LOGICAL CON-

CLUSIONS.

BUT PROBLEM-SOLVING IS AN ENTERPRISE OF A DIFFERENT

SORT ALTOGETHER. THE JUDGE'S EDICT IS NOT CONFINED TO

THE PARTIES BEFORE THE COURT. THE CONSEQUENCES OF SUCH

A JUDICIAL PRONOUNCEMENT CANNOT BE CONFINED TO TILE-SIZED

CHANGES,

FREQUENTLY THE DECISION OF THE JUDGE ADMINISTERS

AVULSIVE CHANGES.

PROBLEM-SOLVING IS THUS A CHANCY

BUSINESS REQUIRING IN A DEMOCRACY NOT ONLY WISDOM AND IN-

VENTIVENESS BUT A KEEN PERCEPTION OF THE POLITICAL IMPLICATIONS.

-20-

I~_..~~.~....... .~ -- .~ _.~-1.- _~ ._

OCCASIONALLY THE PROBLEM-SOLVER EVEN TENDS TO BECOME A

CHAMPION OF A CAUSE RATHER THAN A NEUTRAL AND IMPARTIAL

ARBITER,

THE JUDGE'S REWARD THEN COMES FROM POPULAR

ACCLAIM NOT FROM PROFESSIONAL OR ACADEMIC COMMENDATION.

JUDGES BEING HUMAN OFTEN ARE NOT AVERSE TO

THEIR ENLARGED ROLE AND EXPANDED RESPONSIBILITY.

IT IS

EXHILIRATING TO ADMINISTER RELIEF TO A UNIVERSE OF VICTIMS -

AND IF SOME ARE UNKNOWN AND UNKNOWABLE THEN TO DISTRIBUTE

LARGESSE TO THE DESERVING.

A GIFTED JUDGE OFTEN FINDS

IT A REWARDING AND SELF-FULFILLING EXPERIENCE TO WRITE A

PRESCRIPTION FOR THE REHABILITATION AND PACIFICATION OF A

LARGE STRIFE-TORN COMMUNITY.

BUT THERE ARE NUMEROUS QUESTIONS ABOUT THOSE ALL

-21-

1.. I--I--~-~..--~~..-~.I ~----~~"1. ..----- --. --.------- ----- -- ------ ~1.----1-----.1"11~--~II-__

ENCOMPASSING JUDICIAL PRONOUNCEMENTS MADE BY A SINGLE

PERSON ACTING SOMEWHAT AS A MINI-LEGISLATURE WHICH CONTINUE

TO BOTHER ME AS A TRIAL LAWYER RAISED UNDER AN ADVERSARY

TRADITION,

THAT BOTHER EXISTS EVEN THOUGH SOME OF THOSE

JUDICIAL PRONOUNCEMENTS HAVE HAD BRILLIANT RESULTS HAVE

ACHIEVED BENEFICIAL RESULTS WHICH WOULD HAVE PERHAPS .BEEN

IMPOSSIBLE TO ATTAIN OTHERWISE THROUGH THE POLITICAL PROCESS,

DO WE AS A PEOPLE REALLY BELIEVE THAT THE ORDINARY -

NORMAL LAWYER SITTING AS A JUDGE HAS ANY SPECIAL APTITUDE

WHICH MAKES HER OR HIM SUITABLE CUSTODIANS OF THE SOLE

RESPONSIBILITY FOR THE SOLUTION OF SOCIETY'S MOST VEXING

PROBLEMS?

IS ONE LAWYER WITH NARROW SOCIETAL CONTACTS

AND EXPERIENCES CAPABLE OF FINDING A REPRESENTATIVE PUBLIC

-22-

C. ----~~--L-_._.-~ __~~..

IS THERE ANYTHING IN THE JUDICIAL MACHINERY

WHICH MAKES IT A PECULIARLY SUITABLE INSTRUMENT FOR THE

STUDY AND RESOLUTION OF SUCH PROBLEMS?

INDEED NOT.

IT IS TRADITIONAL FOR EXECUTIVE

COMMISSIONS AND LEGISLATIVE COMMITTEES ASSIGNED TO A

PROBLEM-SOLVING MISSION TO REJECT THE JUDICIAL FORMAT -

TO DISPENSE WITH THE RULES OF EVIDENCE TO SHUN THE ADVERSARY

PROCESS,

THIS SUGGESTS TO ME THAT EXPERIENCE DOES NOT

FIND THESE COURTROOM PROCEDURES HELPFUL IN PROBLEM-SOLVING.

IF THAT BE SO WHY DO WE INSIST ON TURNING TO THE COURTS?

IT IS ONE THING FOR JUDGES TO DECIDE BI-PARTY

CONTROVERSIES AND IN SO DOING PRONOUNCE PRINCIPLES WHICH

MAY HAVE AN EFFECT ON THE SOLUTION OF THE UNDERLYING PROBLEM -

-23-

_ ~II__ 1_______1__ _I~

CONSENSUS?

SOMETIMES FAVORABLE AND SOMETIMES UNFAVORABLE, IT IS

QUITE ANOTHER FOR THE COURTS TO BE BURDENED WITH THE RE-

SPONSIBILITY FOR THE TOTAL SOLUTION OF THE PUBLIC PROBLEMS.

TO AVOID ANY POSSIBLE MISCONCEPTION THAT I AM

SUGGESTING DENIAL OF ACCESS TO THE COURTS BY THOSE WHO HAVE

IN RECENT YEARS BEEN BROUGHT BY THE COURTS FROM DARKNESS

INTO LIGHT BY THOSE MINORITIES BY THE FACELESS MILLIONS

WHOSE RIGHTS AS CITIZENS REALLY EXIST FOR THE FIRST TIME ONLY

BECAUSE OF COURT ACTION I REITERATE A FIRM DENIAL. I

URGE ONLY AN EXPLORATION BY OUR PEOPLE BY OUR LAWYERS -

BY OUR ACADEMICIANS BY OUR JUDGES BY OUR LEGISLATORS -

AS A MATTER OF SOCIAL POLICY OF POSSIBLE PROCEDURAL OR

SUBSTANTIVE CHANGES WHICH COULD BE MADE IN OUR GOVERNMENTAL

-24-

---1 --I-~~---- -r--l- -.~.._~_.~~.~.~..I .II_~~~ ~_~_~__ ___ _ ~__~ __I

PROCESSES TO ALLEVIATE THOSE BURDENS WHICH THEY AFTER STUDY

AND REFLECTION DETERMINE ARE NOW IMPROPERLY IMPOSED ON THE

COURTS,

I URGE ONLY THAT JUDGES EXERCISE TO THE EXTENT

THEIR JUDICIAL CONSCIENCE WILL PERMIT RESTRAINT THAT THEY

INSOFAR AS FEASIBLE REMAIN DISPUTE-RESOLVERS AND NOT

PROBLEM-SOLVERS.

IN MANY AREAS OF OUR COUNTRY EACH ELEMENT IN THE

JUDICIAL PROCESS INSTEAD OF WORKING AS A TEAM SEEMS TO BE

LISTENING TO A DIFFERENT QUARTERBACK SEEMS TO BE SCORNFUL

OR SUSPICIOUS OF ITS TEAMMATES. PARTICULARLY IT SEEMS TO

ME THAT SUCH IS TRUE OF CRIMINAL JUSTICE. THE POLICE ARE

ANNOYED WITH WHAT THEY CALL LENIENT JUDGESi PROSECUTORS AND

DEFENDERS POINT TO WHAT THEY CALL INEPT AND VINDICTIVE POLICE

-25-

ENFORCEMENT; JUDGES COMPLAIN ABOUT WHAT THEY STYLE BAD

LEGISLATION AND POOR CORRECTIONAL OR REHABILITATIVE SYSTEMS;

JAILERS AND PRISON OFFICIALS BLAME THE INADEQUACIES OF THEIR

APPROPRIATIONS AND WHAT THEY CATEGORIZE AS NAIVE PAROLE AND

PROBATION PERSONNEL; PROBATION AND PAROLE PEOPLE BLAME WHAT

TO THEM ARE DISCRIMINATORY PRACTICES BY EMPLOYERS AND SOCIAL

WORKERS.

EVERYONE BLAMES SOMEONE ELSE,

TO ANY OBJECTIVE

AND DISINTERESTED OBSERVER IT IS CRYSTAL CLEAR THAT INCREASED

COORDINATION IS AN URGENT NECESSITY WITHIN THE ENTIRE SYSTEM

IN ALMOST ALL JURISDICTIONS FROM THE ARRESTING POLICEMAN

TO THE PAROLE OFFICER AND TO THE SOCIETY INTO WIICH THE

CONVICT RETURNS,

REAL COMMUNICATION BETWEEN THESE

NECESSARY PARTNERS IN THE CRIMINAL JUSTICE SYSTEM SIMPLY

-26-

SEPARATE LINES OF AUTHORITY DIFFERENT

APPOINTING EXECUTIVES AND BOARDS ALL LEAD TO THE ABSENCE

OF EFFECTIVE COOPERATION BY ALL AGENCIES IN WHAT SHOULD

BE ONLY ONE PROCESS A UNIFIED INTEGRATED SYSTEM OF

JUSTICE.

INJUSTICE IS AN INEVITABLE BY-PRODUCT OF SUCH

A FRAGMENTED SYSTEM.

MANY EXISTING PROCEDURES AT THE

NATIONAL STATE AND LOCAL LEVELS OCCASIONED IN LARGE

MEASURE BY EVER-INCREASING BURDENS IMPOSED UPON OUR JUSTICE

SYSTEM DO SMACK OF INEQUITY THEY DO ATTACK THE PRESUMPTION

OF INNOCENCE THEY DO PRESSURE THE ACCUSED TO ADMIT GUILT -

-27-

IS LACKING,

THEY DO REWARD THE GUILTY.

SYSTEM MAY COLLAPSE BECAUSE OF THE TREMENDOUS VOLUME OF

MATTERS WITH WHICH IT IS INVOLVED PROCEDURES HAVE BEEN

ACCEPTED WHICH THEMSELVES SERIOUSLY UNDERCUT THOSE BASIC

VALUES WHICH ARE THE FOUNDATION OF ANY FAIR AND EVEN-HANDED

JUSTICE SYSTEM:

REGARD FOR THE INDIVIDUAL ACCUSED BY

THE STATE ADHERENCE TO THE RULE OF LAW AND CONCERN FOR THE

SAFETY OF SOCIETY INCLUDING THE OFTEN UNLAMENTED VICTIMS

OF CRIME.

MANY SUFFER FROM THESE DEFICIENCIES BUT -

OF COURSE THE POOR THE WEAK AND THE MINORITIES SUFFER

MOST,

IT IS OBVIOUSLY UNJUST TO ASSUME THAT AN UNTRAINED

PERSON WILL IN OUR HECTIC AND OVERBURDENED COURTS RECEIVE

-28-

OUT OF FEAR THAT THE COURT

DUE FAIRNESS WITHOUT HAVING AT HIS SIDE TO DEFEND HIM FROM

A CRIMINAL CHARGE AN ATTORNEY WHO IS QUALIFIED,

BUT

MOST OF OUR PEOPLE FACED WITH CRIMINAL CHARGES STILL

THROUGHOUT OUR NATION SUFFER THAT LACK OF REPRESENTATION.

IT IS ALSO I SUBMIT THE RESPONSIBILITY

OF THE JUSTICE SYSTEM TO INSURE THAT ALL COURT

PROCEEDINGS BOTH CIVIL AND CRIMINAL INVOLVE ADVERSARY

-29-

COUNSEL WHO ARE REASONABLY WELL MATCHED THAT IS REASONABLY

EQUIVALENT IN EXPERIENCE COMPETENCE CASE-LOAD AND

COMPENSATION,

IF EITHER THE LAWYER FOR THE GOVERNMENT

OR THE LAWYER FOR THE PLAINTIFF OR THE DEFENDANT IS INADEQUATE -

THE ADVERSARY SYSTEM OF SEEKING THE TRUTH FALLS COMPLETELY

APART,

IN FACT THE OBVIOUS UNFAIRNESS OF A JUSTICE

SYSTEM WHICH MITIGATES AGAINST THOSE ILL-EQUIPPED TO DEFEND

THEMSELVES IS IN ITSELF A MAJOR SOURCE OF LAWLESSNESS -

DISORDER AND ALIENATION WHICH IS PRESENT IN OUR NATION,

THE BITTERNESS AND DISAFFECTION WHICH I DETECT IN SUBSTANTIAL

SEGMENTS OF OUR PEOPLE STEMS IN LARGE MEASURE FROM THE

-WIDESPREAD CONVICTION THAT OUR LAWS THEIR.ENFORCEMENT AND

THE JUSTICE PROCESSES RELATED TO THEM PARTICULARLY AT THE

-30-

STATE AND LOCAL LEVELS ARE UNFAIR INEQUITABLE AND UNJUST.

AND DESPITE CONTINUOUS IMPROVEMENT I MYSELF SEE DIFFERENCES

THEREIN WHICH MAKES ME SYMPATHETIC TO THAT CONVICTION ON

THEIR PART,

WITHIN RECENT YEARS MINORITY GROUPS BLACKS -

PUERTO RICANS MEXICAN-AMERICANS CUBANS AMERICAN INDIANS -

HAVE SEEN SOME LIGHT AT THE END OF THE LONG DARK TUNNEL INTO

WHICH THEIR LIVES WERE SEGREGATED. QUITE UNDERSTANDABLY -

THEY NOW DEMAND TO STAND IN THAT LIGHT. BUT AT PRESENT -

IN MOST PARTS OF THE COUNTRY INSOFAR AS THE ADMINISTRATION

OF JUSTICE IS CONCERNED IT IS CLEAR THAT SUCH GROUPS AT BEST -

CONTINUE TO STAND IN THE DIM SHADOWS OF THE LAW.

WHAT CAN WE DO?

IMMEDIATE ATTENTION.

MANY MATTERS OBVIOUSLY CALL FOR

CERTAIN POLICE PRACTICES SOME REAL

-31-

SOME IMAGINED HAVE AT LEAST CAUSED WIDESPREAD COMMUNITY

SUSPICION.

THE USE AND MISUSE OF CRIME STATISTICS BY

GOVERNMENTAL OFFICERS AND LAW ENFORCEMENT PERSONNEL REQUIRES

THAT THESE STATISTICS BE USED IN THE FUTURE WITH GREATER

DISCRETION.

INCONVENIENCES TO POTENTIAL WITNESSES AND

OPPORTUNITIES FOR INTIMIDATION OF THOSE POTENTIAL WITNESSES -

BOTH OF WHICH MITIGATE AGAINST CITIZEN INVOLVEMENT IN CRIME

PREVENTION AND REPORTING MUST BE STUDIED AND ALLEVIATED.

OVERCROWDED JAILS AND PRISONS WHICH ARE UNDERSTAFFED AND ILL-

FINANCED MUST RECEIVE OUR IMMEDIATE AND URGENT ATTENTION.

ANTIQUATED BAIL BOND SYSTEMS MUST BE STUDIED AND SQUARED WITH

MODERN REALITIES,

SO LONG AS PLEA BARGAINING REMAINS A

NECESSARY EXPEDIANT IT MUST BE MORE CLOSELY SUPERVISED

-32-

BY COURTS AND COMPETENT COUNSEL INCLUDING BOTH EXPERIENCED

PROSECUTORS AND EXPERIENCED DEFENDERS.

PROBATION AND

PAROLE POLICIES AND PROCEDURES SHOULD BE GIVEN GREATER

SIGNIFICANCE AND ATTENTION.

THE CASELOADS OF PAROLE

OFFICERS MUST BE BROUGHT WITHIN FAIR LIMITS,

THE PROBLEMS

OF JUVENILES WHO ARE EMESHED IN OUR CRIMINAL JUSTICE SYSTEM

SHOULD RECEIVE OUR COMPASSIONATE ATTENTION.

SOME FORM OF

APPROPRIATE POST-AUDIT OF THE ENTIRE JUSTICE SYSTEM MUST BE
DEVISED AND IMPLEMENTED. TRAINED COURT MANAGERS MUST BE
UTILIZED TO BRING TO OUR COURTS THOSE MODERN METHODS OF

CONTROL WHICH HAVE CONTRIBUTED SO MUCH TO THE EFFICIENCY OF

OUR DYNAMIC BUSINESS INSTITUTIONS.

ABOVE ALL, WE MUST

INSURE THAT THE FINEST LAWYERS AVAILABLE ARE SELECTED AS

JUDGES OF OUR COURTS FREE FROM POLITICS AND THE PRESSURES

-33-

WE SHOULD STRIVE FOR IN-SERVICE TRAINING

OF ALL JUDGES THE INTERPRETERS OF JUSTICE.

JUDGES SHOULD

BE PAID COMPENSATION COMPARABLE TO THAT WHICH THE JUDGE COULD

RECEIVE IN PRIVATE LAW PRACTICE,

ALL RESTRICTIONS OF TRIAL

COURT JURISDICTIONS SHOULD BE ELIMINATED SO THAT ALL OF OUR

TRIAL COURT JUDICIAL MANPOWER WILL BE AVAILABLE TO WORK WHERE

THE WORK IS THUS SIMPLIFYING THE ALLOCATIONS BETWEEN FORUM

AND JUDGES WHICH NOW RESULTS IN AN UNEVEN DISTRIBUTION OF THE

JUDICIAL BURDEN,

IT SEEMS SO VERY CLEAR TO ME THAT WE MUST

HAVE IN EACH AND EVERY STATE AN INTEGRATED COORDINATED -

UNIFORM SYSTEM OF TRIAL COURTS IN WHICH JUDICIAL MANPOWER AND

COURT SUPPORT PERSONNEL FROM THROUGHOUT AN ENTIRE STATE ARE

AVAILABLE FOR USE WHEREVER NEEDED WITHIN THAT STATE,

-34-

OF PARTISANSHIP,

TO ME IT IS AN IDEA WHOSE TIME HAS COME TO CREATE

EVERYWHERE NATIONALLY AND IN ALL STATES AND AS QUICKLY AS

POSSIBLE ONE COORDINATED UNIFORM FULLY INTEGRATED SYSTEM

OF JUSTICE.

IT IS ONLY THROUGH SUCH A CONCERTED EFFORT THAT

WE SHALL EVER BE ABLE TO DELIVER THE "JUSTICE FOR ALL"

ENVISIONED BY OUR FOREFATHERS.

CHANGESIN THE JUSTICE SYSTEM DO NOT COME EASY, IN

MY EXPERIENCE WORTHWHILE REFORMS OF ANY KIND HAVE ALWAYS

BEEN TIME-CONSUMING AND DIFFICULT.

BUT AMERICA HAS NO CHOICE SINCE FAIRNESS OF THE LAW

TO EVERY SINGLE PERSON IS THE CORNERSTONE OF ITS DEMOCRACY.

THE "SIXTIES" MUST INDEED BY ONLY THE PROLOGUE FOR

OUR JUDICIAL AND LEGAL ASPIRATIONS OF THE "EIGHTIES."

(THANK YOU).

-35-

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 174

VOLUME XII

ADDRESS BY: CHESTERFIELD SMITH
LAWYER
LAKELAND, FLORIDA

BEFORE: 1977 NATIONAL MEDICOLEGAL
SYMPOSIUM, JOINTLY
SPONSORED BY THE AMERICAN
BAR ASSOCIATION AND THE
AMERICAN MEDICAL ASSOCIATION

PLACE: FAIRMONT HOTEL
SAN FRANCISCO, CALIFORNIA

DATE: MARCH 20, 1977

TITLE: THE PROBABLE EFFECT OF
THE GOLDFARB DECISION
ON THE MEDICAL AND LEGAL
PROFESSIONS

TWENTY MINUTES

TIME:

THE EFFECT OF THE "GOLDFARB" DECISION ON BOTH

PROFESSIONS, (421 U.S. 773)

WHAT IS THE "GOLDFARB" DECISION?

IN 1975 -

THE SUPREME COURT OF THE UNITED STATES IN "GOLDFARB"

FOR THE FIRST TIME EXPRESSLY HELD THAT THE FEDERAL ANTI-

TRUST LAWS APPLIED TO A LEARNED PROFESSION BUT INDICATED

ALSO IN ITS OPINION THAT "ANTITRUST CONCEPTS WHICH ORIGINATED

IN OTHER AREAS" WOULD NOT BE APPLIED "AUTOMATICALLY" TO

THOSE PROFESSIONS.

WHILE THE FACTS AND CIRCUMSTANCES IN "GOLDFARB"

INVOLVED ONLY PRICE-FIXING BY LAWYERS THE DECISION SET

FORTH GENERAL GUIDELINES FOR THE GOVERNANCE OF ALL PROFESSIONS -

AND PARTICULARLY FOR THE MEDICAL AND LEGAL PROFESSIONS.

-1-

GOLDFARB DOES PERMIT BOTH THE SEVERAL STATES AND THE

ORGANIZED PROFESSIONAL ASSOCIATIONS TO CONTINUE TO REGULATE

THE PROFESSIONS -1 BUT IT REQUIRES THAT SUCH REGULATIONS HAVE

DUE CONCERN FOR A FREELY COMPETITIVE MARKET FOR THOSE

PROFESSIONAL SERVICES SO REGULATED,

GOLDFARB CERTAINLY

HAS MADE IT CLEAR THAT PROFESSIONAL REGULATIONS FOR THE

PURPOSE OF ENHANCING THE PROFESSIONAL PRESTIGE OR ECONOMIC

STATUS OF THE PRACTITIONERS OF THAT PROFESSION ARE ANTI-

TRUST SUSPECT AND-THAT SUCH REGULATIONS UNDER PROPER ATTACK

WILL FALL,

GOLDFARB FOR OUR PURPOSES TODAY- HOWEVER -

MOST IMPORTANTLY ADVISES US THAT THE "PUBLIC SERVICE ASPECT

AND OTHER FEATURES OF THE PROFESSIONS" COULD PROVIDE AN

EFFECTIVE ANTITRUST SHIELD IN APPROPRIATE FACT SITUATIONS,

-2-

WHILE ADMITTEDLY THE SUPREME COURT MADE NO COMMITMENT AS

TO HOW IT WOULD ACT IN FUTURE APPLICATION OF THE ANTITRUST

LAWS TO THE PROFESSIONS IT DID APPARENTLY INDICATE THAT

RESTRAINTS IN THE FORM OF SELF-REGULATION BY THE PROFESSIONS

WHICH ARE DESIGNED TO SERVE AND PROTECT THE CONSUMER OF

THOSE PROFESSIONAL SERVICES AND TO ASSURE PROFESSIONAL COM-

PETENCE AND INTEGRITY WOULD NOT BE REGARDED AS A VIOLATION

OF THE ANTITRUST LAWS.

OF EVEN GREATER SIGNIFICANCE IS THE RECOGNITION

IN "GOLDFARB" BY THE SUPREME COURT THAT THE SEVERAL STATES

HAVE "BROAD POWERS" TO REGULATE THE PRACTICE OF PROFESSIONS.

THE COURT STATED THAT "IN SOME INSTANCES THE STATE MAY DECIDE

THAT FORMS OF COMPETITION USUAL IN THE BUSINESS WORLD MAY BE

DEMORALIZING TO THE ETHICAL STANDARDS OF A PROFESSION.

-3-

IT SEEMS CRYSTAL CLEAR TO ME THAT THE BASIC PREMISE

OF "GOLDFARB" IS THAT THE PROFESSIONS WILL RECEIVE NO SPECIAL

CONSIDERATION IF THEY ENGAGE IN ANTI-COMPETITIVE PRACTICES

WHICH HARM CONSUMERS AND BENEFIT THEIR MEMBERS ECONOMICALLY

UNDER THE GUISE OF MAINTAINING ETHICAL STANDARDS. THE COURT

CLEARLY HELD THAT MERE SEMANTICS BY THE PROFESSION OR A STATE

WILL NOT DETERMINE WHETHER A REAL ETHICAL STANDARD IS

INVOLVED -- AND PROPERLY SO,

IT WAS OF COURSE EASY TO ANTICIPATE THAT "GOLDFARB"

WOULD STIMULATE A RASH OF LITIGATION RELATED TO THE ECONOMICS

OF THE DELIVERY TO THE CONSUMING PUBLIC OF BOTH HEALTH CARE

AND LEGAL SERVICES,

THAT OF COURSE HAS HAPPENED.

ORGANIZED PROFESSIONS NOW FACE AN ACCELERATING PROLIFERATION

OF LITIGATION CHALLENGING EITHER DIRECTLY OR INDIRECTLY -

-4-

THE

MOST OF THEIR HISTORIC ETHICAL STANDARDS.

OUT OF SO MUCH LITIGATION IT IS DANGEROUS TO

SELECT ONLY A FEW FOR MEANINGFUL DISCUSSION,

I SHALL

MENTION ONLY THREE,

FIRST THE FEDERAL TRADE COMMISSION ISSUED AN

ADVERTISING COMPLAINT AGAINST THE AMERICAN MEDICAL ASSOCIA-

TION PREMISED UPON THE EXPECTATION THAT CERTAIN TYPES OF

ADVERTISING BY MEDICAL PRACTITIONERS WILL LOWER HEALTH CARE

PRICES,

THE FEDERAL TRADE COMMISSION ASSERTS THAT IT

WILL DO SO BY HELPING CONSUMERS BETTER USE PRICE IN THEIR

MEDICAL PURCHASE DECISIONS AND'THAT IN TURN THIS WILL

ENCOURAGE MEDICAL PRACTITIONERS TO BECOME MORE EFFICIENT

AND MORE PRICE COMPETITIVE,

WHILE MOST OF US WHO FOR A LONG TIME HAVE

-5-

PRACTICED ONE OF THE "LEARNED PROFESSIONS" WOULD HAVE GASPED

OUTRAGEOUSLY TEN YEARS AGO THAT PRICE COMPETITION HAS ABSO-

LUTELY NO PLACE IN MEDICINE OR LAW THE U. S. SUPREME COURT

ULTIMATELY PROBABLY WILL NOT AGREE,

NOT VERY LONG AGO -

THE COURT OVERTURNED STATE ANTI-ADVERTISING REGULATIONS

DIRECTED AGAINST PHARMACISTS HOLDING THAT THE REGULATIONS

COULD NOT WITHSTAND THE FREE SPEECH GUARANTEE OF THE FIRST

AMENDMENT,

THOSE PESSIMISTIC PROFESSIONALS IN THE

AUDIENCE MAY WELL SAY "THAT'S IT" THE FEDERAL TRADE

COMMISSION WILL PREVAIL IN ITS COMPLAINT AGAINST THE

AMERICAN MEDICAL ASSOCIATION BUT WAIT SAY THE OPTIMISTIC

AMONG US -- THE SUPREME COURT ADDED A CONTROVERSIAL FOOTNOTE

WHICH GIVES WE PROFESSIONALS SOME SUCCOR,

DOES IT REALLY?

-6-

WE WILL ONLY KNOW WHEN THE SUPREME COURT SPEAKS AGAIN. WI

CANNOT NOW BE SURE WHAT IS MEANT BY THAT FOOTNOTE BY THE

SUPREME COURT WHICH SAID THAT "CERTAIN KINDS OF PRICE

ADVERTISING" RELATED TO PROFESSIONAL SERVICES WHICH ARE

HARD TO CHARACTERIZE OR QUANTIFY MAY NOT EASILY BE JUSTIFIED

ON FIRST AMENDMENT GROUNDS.

DOES THAT MEAN THAT CERTAIN

OTHER KINDS OF PRICE ADVERTISING BY DOCTORS OR LAWYERS ARE

JUSTIFIABLE.

IF SO WHAT ARE THOSE KINDS OF SERVICES,

WHILE WE IN THE PROFESSIONS MAY NOW CLAIM THAT THERE ARE

SO MANY VARIABLES THAT IT IS IMPOSSIBLE TO FOSTER COMPETITION

IN THE PROFESSIONS BY PRICE ADVERTISING OTHER WILL UN-

DOUBTEDLY RESPOND THAT IF A PARTICULAR PROFESSIONAL SERVICE

BEFORE "GOLDFARB" WAS SPECIFIC ENOUGH TO FIND ITS WAY TO

-7-

A MINIMUM FEE SCHEDULE IT IS NOW SPECIFIC ENOUGH FOR

PRICE ADVERTISING,

THE RULE-MAKING PROCEDURE INVOLVING

THE AMERICAN MEDICAL ASSOCIATION BEFORE THE FEDERAL TRADE

COMMISSION CONTINUES TO BE UNDER ADVISEMENT AND IT NO

DOUBT WILL AWAIT FURTHER WORD BY THE U. S. SUPREME COURT

BEFORE FINAL RESOLUTION. I MYSELF DO NOT THINK THAT IT

WILL DRASTICALLY CHANGE THE PRACTICE OF MEDICINE,

THEN IN JUNE 1976 THE U. S, DEPARTMENT OF JUSTICE

IN THE SECOND CASE I SHALL MENTION INITIATED AN ANTITRUST

CASE AGAINST THE AMERICAN BAR ASSOCIATION BRIEFLY ALLEGING

THAT THERE IS A CONSPIRATORIAL AGREEMENT BETWEEN THE ABA -

ITS MEMBERS AND OTHER UN-IDENTIFIED CO-CONSPIRATORS TO

PROHIBIT ADVERTISING AND THAT THIS IS MANIFESTED BY THE ABA

CODE OF PROFESSIONAL RESPONSIBILITY. THE AMERICAN BAR

ASSOCIATION DENIED THE CHARGES AND IS VIGOROUSLY DEFENDING

THE SUIT,

IT ASSERTS ITS FIRST AMENDMENT RIGHTS TO SPEAK

ON THAT SUBJECT AND ITS RIGHT TO LOBBY THE STATES TO THAT

SUBJECT,

INDEED ITS DEFENSE IS BUTTRESSED ON THE

STATES' PARAMOUNT INTEREST IN THE CONDUCT OF LAWYERS. AS

I UNDERSTAND IT THE CASE IS PROGRESSING ROUTINELY WITH

THE LAWYERS FOR BOTH SIDES INVOLVED EXTENSIVELY IN DISCOVERY.

THE FINAL CASE I SHALL MENTION IS BATES AND OSTEEN

VERSUS STATE BAR OF ARIZONA WHICH WAS ORALLY ARGUED IN

THE U, S. SUPREME COURT IN JANUARY AND WHICH MAY BE DECIDED

NOW AT ANY TIME,

IT IS WHAT I CALL A "GUT-BUCKET CASE"

IN WHICH THE PRECISE ISSUE IS WHETHER A STATE SUPREME COURT

RULE FORBIDDING PRIVATE ATTORNEYS TO ADVERTISE THEIR SERVICES

VIOLATES THE FEDERAL CONSTITUTION OR THE FEDERAL ANTITRUST LAWS,

-9-

BECAUSE THIS CASE IN MY OPINION CURRENTLY

IS OF EXTREME IMPORTANCE TO THE WHOLE FUTURE OF PROFESSIONAL

REGULATION LET ME BRIEF IT FOR YOU.

BATES AND OSTEEN RECENT LAW GRADUATES OPENED

A "LEGAL CLINIC" IN PHOENIX DESIGNED TO APPEAL TO PEOPLE

ON WELFARE OR WITH A LIMITED INCOME INCLUDING MANY RETIRED

PEOPLE. IN FEBRUARY 1976 THEY PLACED AN ADVERTISEMENT

IN A PHOENIX NEWSPAPER LISTING THEIR FEES FOR VARIOUS LEGAL

SERVICES -- $175. FOR AN UNCONTESTED DIVORCE; $100. FOR

PREPARATION OF COURT PAPERS AND INSTRUCTIONS ON HON TO GET

YOUR OWN UNCONTESTED DIVORCE; $100, FOR ADOPTION SERVICES;

$250, FOR UNCONTESTED CONSUMER BANKRUPTCIES AND $95. FOR A

CHANGE OF NAME,

THAT ADVERTISEMENT BROUGHT THEM IN DIRECT CONFRONTA-

TION WITH A RULE FORBIDDING ADVERTISING BY LAWYERS FIRST

PROMULGATED BY THE AMERICAN BAR ASSOCIATION IN 1908 AND NOW

-10-

ADOPTED IN STATES BY STATUTE OR AS IN ARIZONA BY

COURT RULE,

DISCIPLINARY PROCEEDINGS WERE PROMPTLY

INITIATED BY THE STATE BAR OF ARIZONA.

BATES AND OSTEEN

ADMITTED THAT THEY HAD VIOLATED THE RULE BUT ARGUED THAT

IT WAS IN VIOLATION OF THE FIRST AMENDMENT AND FEDERAL

ANTITRUST LAWS.

IN JULY 1976 THE ARIZONA SUPREME

COURT REJECTED THOSE ARGUMENTS AND NOT SURPRISINGLY -

UPHELD ITS OWN RULE.

BATES AND OSTEEN RELY UPON FOUR RECENT SUPREME

COURT CASES:

1. THE "BIGELOW" CASE WHICH BY INVALIDATING
A VIRGINIA STATUTE FORBIDDING THE ADVERTISING
OF ABORTION SERVICES EXTENDED FIRST
AMENDMENT PROTECTION TO "COMMERCIAL SPEECH"
OR ADVERTISING.

-11-

2. THE "VIRGINIA STATE BOARD OF PHARMACY" CASE
WHERE IT SIMILARLY INVALIDATED ANOTHER
VIRGINIA STATUTE FORBIDDING PRICE ADVERTISING
OF PRESCRIPTION DRUGS.

IT SHOULD BE NOTED THAT IN BOTH OF THOSE CASES -

THE SUPREME COURT INDICATED THAT THE FIRST AMENDMENT PROTECTION

WAS NOT ABSOLUTE AND THAT COMMERCIAL SPEECH MIGHT BE SUBJECTED

TO SOME REGULATION WHERE NECESSARY TO FURTHER A COMPELLING

PUBLIC INTEREST.

3. THE THIRD CASE RELIED ON BY BATES AND OSTEEN
WAS OF COURSE "GOLDFARB" DECIDED ON THE.
SAME DAY AS "BIGELOW". BATES AND OSTEEN
ARGUE THAT THE INTEGRATED STATE BAR OF
ARIZONA LIKE THE INTEGRATED VIRGINIA
STATE BAR IN GOLDFARB DOES NOT MERIT STATE
EXEMPTION. THEY ARGUE THAT A PRIVATELY-
IMPOSED RESTRICTION ON LEGAL ADVERTISING
VIOLATES THE FEDERAL ANTITRUST LAWS AND
A PRIVATELY INITIATED PRACTICE IS NOT
EXEMPTED FROM THOSE LAWS BY-ITS LATER

-12-

EMBODIMENT IN A STATE RULE. THEY ARGUED
THAT THE COMPELLING FEDERAL INTEREST IN FREE
COMPETITION MUST OVERRIDE ANY LESS COMPELLING
STATE INTEREST IN SUCH A RULE.

4. THE LAST CASE IS THE "DETROIT EDISON" CASE WHERE
THE SUPREME COURT AGAIN FOUND NO STATE ACTION
EXEMPTION FROM FEDERAL ANTITRUST LAWS WHERE
THE MICHIGAN PUBLIC SERVICE COMMISSION HAD
APPROVED A DETROIT EDISON TARIFF FIXING A
SINGLE RATE FOR BOTH ELECTRICITY AND LIGHT
BULBS ALTHOUGH MICHIGAN LAW THEN REQUIRED
EDISON TO OBSERVE THE RATE FIXED UNTIL IT
FILED AND OBTAINED APPROVAL OF A DIFFERENT
TARIFF.

THE SUPREME COURT HERE WILL HAVE TO DETERMINE WHETHER

ARIZONA HAS A COMPELLING INTEREST IN SUPRESSING THE COMMERCIAL

ADVERTISEMENT OF A LAWYERS FEES, IT WILL HAVE TO DETERMINE

WHETHER THE TRADITIONAL ARGUMENTS FOR THIS LONG-STANDING

RESTRICTION CONTINUES TO JUSTIFY A FLAT STATE BAN ON ADVERTISING

-13-

OR WHETHER THOSE EVILS OR ANTICIPATED EVILS CAN BE MET BY

NARROWLY TAILORED LAWS DRAWN TO FIT SUCH PROBLEMS.

IS THE COMMERCIAL SPEECH DOCTRINE UNLIMITED?

DOES THE FIRST AMENDMENT IMMUNIZE COMMERCIAL

SPEECH AGAINST LEGITIMATE GOVERNMENTAL REGULATION OR

PROHIBITION?

DO THE STATES HAVE THE CONSTITUTIONAL POWER TO

DETERMINE FOR THEMSELVES WHETHER THE PUBLIC INTEREST WILL

BE BEST SERVED IF THE ADVERTISING OF MEDICAL OR LEGAL SERVICES

IS PROHIBITED OR REGULATED?

WE SHALL SOON KNOW -- AND WHAT DO I PREDICT?

I WOULD GUESS THAT THE SUPREME COURT'S DECISION

WILL GO SOMETHING LIKE THIS:

-14-

FIRST THE FEDERAL ANTITRUST LAWS ARE

DESIGNED TO PREVENT RESTRICTIONS ON COMPETITION -

NOT MERELY THE DIRECT FIXING OF PRICES.

PROHIBITIONS ON ADVERTISING DO PREVENT LAWYERS

FROM COMPETING IN THAT FASHION THUS INDIRECTLY

INCREASING PRICES AND CHILLING THE CONSUMERS OF

LEGAL SERVICES IN THEIR OPTIONS ON CHOICE OF

LAWYERS,

THE SERIOUS ANTI-COMPETITIVE EFFECTS

OF A TOTAL BAN ON ADVERTISING OUTWEIGHS ANY

CONCEIVABLE BENEFITS.

NEVERTHELESS ALTHOUGH

SUCH A BAN VIOLATES THE SUBSTANTIVE STANDARDS OF

THE ANTITRUST LAWS ARIZONA IN THIS CASE IS

IMMUNE FROM ANTITRUST CHALLENGE BECAUSE OF THE

STATE ACTION DOCTRINE.

-15-

SECOND ARIZONA'S FLAT PROHIBITION IN THIS

CASE IS UNNECESSARILY BROAD.

IS PROTECTED BY THE FIRST AMENDMENT,

COMMERCIAL SPEECH

THE FREE

FLOW OF INFORMATION ABOUT LEGAL SERVICES IS NOT

LESS IMPORTANT TO CONSUMERS THAN THE FREE FLOW OF

INFORMATION ABOUT ABORTION SERVICES IN "BIGELOW"

OR THE PRICES OF PRESCRIPTION DRUGS IN "VIRGINIA

PHARMACY".

TO PREVENT THE DISSEMINATION OF

FALSE OR DECEPTIVE INFORMATION ARIZONA COULD

PROPERLY REGULATE ADVERTISING BY METHODS OTHER

THAN A TOTAL BAN OF ALL ADVERTISING.

SINCE

IT DID NOT DO SO THE PRESENT COURT RULE IS

VIOLATIVE OF THE FIRST AMENDMENT AND CANNOT STAND.

-16-

REVERSED.

NOW THAT IS WHAT I THINK WILL HAPPEN WHAT

DO I WANT TO HAPPEN?

THINK WILL HAPPEN.

FRANKLY VERY CLOSE TO WHAT I

SO I SAY TO YOU:

WHOM ARE WE

PROTECTING WHEN WE AS DOCTORS AND LAWYERS PROHIBIT OTHER

DOCTORS AND LAWYERS FROM COMPETING EQUALLY WITH OTHER

GROUPS WHO COMPETE WITH DOCTORS AND LAWYERS?

WHOM

ARE WE PROTECTING WHEN WE CHILL THE ABILITY OF A YOUNG

DOCTOR OR LAWYER TO ADVERTISE LOWER FEES THAN ARE CHARGED

BY THOSE DOCTORS AND LAWYERS WHO HAVE ALL THE BUSINESS THEY

CAN HANDLE PROFICIENTLY AND PERHAPS SOMETIMES EVEN MORE?

IN VIEW OF THE BURGEONING DEMANDS FOR PROFESSIONAL SERVICES -

SHOULD WE-AS-PROFESSIONALS RE-EXAMINE OUR DUTY TO THE CONSUMING

-17-

PUBLIC IN THE AREA OF MAKING COMPETENCE AVAILABILITY -

AND INTEREST OF A DOCTOR OR 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 THE UNEVEN DISTRIBUTION OF SERVICES

BY LEAVING THE PROFESSIONAL WORK WITH THOSE WHO ALREADY HAVE

IT. DO PROFESSIONALS NOW GET AROUND THE EXISTING RULES BY

COVERT ADVERTISING?

SHOULD ACTIVITIES DESIGNED TO SECURE

PATIENTS OR CLIENTS BE BROUGHT OUT INTO THE SUNSHINE? BY

THOSE EXISTING ANTI-COMPETITIVE RESTRICTIONS AGAINST EVEN

LIMITED ADVERTISING HAVE WE LOCKED PROFESSIONAL BUSINESS IN

TO THOSE HO ALREADY HAVE TOO MUCH OF IT?

I ACKNOWLEDGE

-18-

THAT THE ANSWERS TO THE FOREGOING QUESTIONS ARE NOT CLEAR -

AND WHILE I PERSONALLY KNOW LITTLE ABOUT HEALTH CARE I

WOULD NOW RESPOND BY SAYING "YES".

AS A LAWYER I HAVE ALWAYS BELIEVED THAT THE

ORGANIZED BAR SHOULD PERIODICALLY EXAMINE AND RE-EVALUATE

EXISTING STRUCTURES AND MORES OF THE LEGAL PROFESSION. I

DO NOT MYSELF LONGER BELIEVE THAT 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 IS MORE HARMFUL TO THE LEGAL PROFESSION

THAN IT IS BENEFICIAL TO SOCIETY.

I NO LONGER BELIEVE THAT

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

-19-

AN ESTIMABLE POSITION IN OUR SOCIETY.

LET ME MAKE IT CRYSTAL CLEAR THAT IF I WERE KING

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

ANY WAY 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 REANALYZED -

AND RE-PUBLISHED IN MODIFIED FORM 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 PROVISION OF THE CODE OF PROFESSIONAL RESPONSIBILITY -

HOWEVER THAT CODE MAY FROM TIME TO TIME BE MODIFIED.

-20-

CERTAINLY ADVERTISING BY AN INDIVIDUAL DOCTOR OR

LAWYER MUST REFLECT DIGNITY DECORUM GOOD TASTE AND

PROFESSIONAL HONOR,

PRIMARY RESTRAINT ON DOCTOR OR LAWYER

ADVERTISING BY THE ORGANIZED PROFESSIONS OF MEDICINE AND LAW

TO INSURE MINIMUM PROFESSIONAL STANDARDS MAY BE NECESSARY -

AT LEAST INITIALLY.

OF NECESSITY LAWYER AND DOCTOR

ADVERTISING SHOULD BE POLICED TO PREVENT SOLICITATION AND

ADVERTISING WHICH IS FALSE MISLEADING UNDIGNIFIED OR

CHAMPERTOUS.

ADVERTISING BY DOCTORS OR LAWYERS SHOULD

BE REASONABLY CALCULATED TO EDUCATE PERSONS TO ENCOURAGE

THE FULL UTILIZATION OF PREVENTIVE MEDICINE AND LAW TO

SPREAD KNOWLEDGE OF THE AVAILABILITY OF MEDICAL AND LEGAL

SERVICES TO PERSONS OF MODERATE MEANS TO ADVISE THOSE WHO MIGHT

UTILIZE THOSE SERVICES HOW TO SELECT THE PROPER DOCTOR OR LAWYER

-21-

AND WHAT THE COST OF THAT DOCTOR OR LAWYER'S SERVICES TO

THEM MIGHT BE TO ACQUAINT THEM WITH HOW THOSE FEES WILL

BE DETERMINED AND TO INFORM THE GENERAL PUBLIC OF THE

PROFESSIONAL ACTIVITIES INTERESTS AND EXPERIENCES OF A

PARTICULAR DOCTOR OR LAWYER OR GROUP OF DOCTORS OR LAWYERS.

THE USE OF ANY ADVERTISING BY A DOCTOR OR LAWYER SHOULD

NORMALLY BE RESTRICTED TO ROUTINE OFFICE PRACTICE. IT

SHOULD NOT BE DESIGNED FOR THE PURPOSE NOR WITH THE EFFECT OF

CREATING FALSE OR UNJUSTIFIED EXPECTATIONS OF CURE OR LITIGATION

SUCCESS,

IT SHOULD NEVER CONTAIN DISPARAGEMENT OF FELLOW

DOCTORS OR LAWYERS OR HEALTH CARE FACILITIES HOSPITALS -

OR THE COURTS OR THE MEDICAL OR LEGAL PROFESSIONS.

BUT ALL

OF THAT CAN BE DONE BY RATHER SIMPLE MODIFICATION OF EXISTING

ETHICAL AND DISCIPLINARY STANDARDS,

-22-

AND WHY SHOULD SUCH MODIFICATIONS NOT BE MADE?

THE CONSUMER OF MEDICAL AND 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 BOTH DOCTORS AND LAWYERS THAT WE AVOID

UNNECESSARY RESTRICTIONS ON COMPETITION AMONG AND BETWEEN THEM

AND OTHER COMPETING PROFESSIONALS OR BUSINESS ENTITIES,

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

MEDICAL AND LEGAL PROFESSION IS THEREFORE A LEGITIMATE AND

SERIOUS CONCERN OF BOTH PROFESSIONS.

MY THESIS SIMPLY IS THAT THE PUBLIC INCLUDING

-23-

BOTH PATIENTS AND THOSE WHO MAY BECOME PATIENTS AND CLIENTS

AND POTENTIAL CLIENTS IS NOT PROTECTED BY PROHIBITING THE

DOCTOR OR LAWYER FROM PUBLICLY PROCLAIMING THAT DOCTORS OR

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 MEDICINE AND LAW,

ACTIVITIES

GEARED TO MOTIVATING THE INDIVIDUAL CONCERNED TO DO

SOMETHING ABOUT HIS OR HER HEALTH OR 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

-24-

BE MET IN ANY OTHER WAY,

GOLDFARB THEN IS NOT IMPORTANT IN THE LONG RANGE

OF PROFESSIONAL ORGANIZATIONS BECAUSE IT OUTLAWED MINIMUM

FEE SCHEDULES,

THE AMERICAN MEDICAL ASSOCIATION LONG HAS

HELD SUCH A POSITION AND THE AMERICAN BAR ASSOCIATION -

WHILE SLOWER TO RESPOND DID SEVERAL YEARS BEFORE GOLDFARB

ENCOURAGE THE STATE BARS TO DISCONTINUE THEIR USE.

GOLDFARB TOO IS NOT CRITICAL TO OUR PROFESSIONAL

FUTURE SIMPLY BECAUSE IT HELD THE LEARNED PROFESSIONS TO BE

SUBJECT TO THE FEDERAL ANTITRUST LAWS.

ITS EVERLASTING SIGNIFICANCE TO US AS DOCTORS AND

LAWYERS IS THE ENTRY OF CONSUMERISM INTO THE REGULATION OF

OUR PROFESSIONS.

-25-

WHILE GOLDFARB WILL NOT PREVENT THE MEDICAL PRO-

FESSION OR THE LEGAL PROFESSION AS ORGANIZED ENTITIES FROM

REGULATING VARIOUS MEDICAL OR LEGAL ASPECTS OF THE RESPECTIVE

PROFESSIONS IT DOES SIGNIFY THE END OF REGULATION BY THOSE

ORGANIZED ENTITIES OF THE SOLELY COMMERCIAL ASPECTS OF THE

PRACTICE OF MEDICINE AND THE PRACTICE OF LAW,

WHILE ADMITTEDLY IT IS DIFFICULT TO DISTINGUISH BETWEEN

COMMERCIAL AND NON-COMMERCIAL ASPECTS OF A PROFESSION I

PREDICT THAT ULTIMATELY GOLDFARB WILL LEAD TO MANY INNOVATIONS

IN THE DELIVERY AND AVAILABILITY OF-BOTH MEDICAL AND LEGAL

SERVICES,

THOSE INNOVATIONS THOSE RESTRUCTURING

OF THE PROFESSIONS WILL BE ACHIEVED IN MULTIPLE WAYS SUCH

AS VOLUNTARY ACTION COURT PROCEEDINGS RULES OR REGULATORY

ACTIONS LEGISLATION AND ORGANIZED ECONOMIC PRESSURES

-26-

BY CONSUMERS BUT GOLDFARB SIGNALS THEIR COMING.

DOCTORS AND LAWYERS TO DO IT THEMSELVES VOLUNTARILY AND

NOT INVOLUNTARILY.

NO LONGER CAN PROFESSIONAL RULES STIFLE INNOVATION

IN DELIVERY OF SERVICES REDUCE PROFESSIONAL PRODUCTIVITY -

UNNECESSARILY RESTRICT ENTRANCE INTO THE PROFESSIONS AND

LIMIT BOTH CONSUMER AND PROFESSIONAL PRICE SENSITIVITY -

WITHOUT OFFSETTING PUBLIC BENEFITS WHICH ARE APPARENT TO THE

PUBLIC.

TO NAME A FEW AREAS OF CHANGE BESIDE THE ONE OF

PRICE AND OTHER ADVERTISING INFORMATION WHICH I HAVE ALREADY

DISCUSSED:

1. ORGANIZATIONAL FORMS OF PRACTICE

CORPORATIONS WITH NON-PROFESSIONAL OWNERS

PARTNERSHIPS WITH OTHER PROFESSIONALS.

-27-

I WANT

2, ENTRY INTO THE PROFESSIONS INCLUDING:

(A) LIMITATIONS ON COLLEGE ACCREDITATION

(B) THE USE OF LICENSING EXAMS

(c) RECIPROCITY REQUIREMENTS

(D) LIMITATIONS ON THE INDEPENDENCE OF
PARA-PROFESSIONALS,

(E) U. S. CITIZENSHIP REQUIREMENTS.

3. CAN THE REGULATED BE ALSO THE REGULATORS?

SHOULD THE PROFESSIONS BE ONLY MINORITIES
ON PROFESSIONAL REGULATORY BOARDS?

SHOULD THERE BE MAJORITY RULE BY NON-
PROFESSIONALS?

GOLDFARB DOES MEAN THAT PROFESSIONAL APATHY AND

RESISTANCE TO CHANGE HAVE SPAWNED MOVEMENTS THAT THE

PROFESSIONS CANNOT STUDY TO DEATH IN COMMITTEES OR PROFESSIONAL

-28-

ASSEMBLIES. THOSE MOVEMENTS BEGAN AS A GROUND SWELL AND

IN MANY WAYS HAVE BECOME A TIDAL WAVE SWEEPING THE COUNTRY,

IT HAS DRAWN TO IT CONSUMER PETITIONS AND LAWSUITS IN STATE

AND FEDERAL COURTS ON ALMOST ALL ASPECTS OF PROFESSIONAL

REGULATION. PRIVATELY FUNDED NON-PROFIT CONSUMER GROUPS

ARE ON THE BANDWAGON. THE LARGE POWERFUL FEDERAL AND

STATE AGENCIES ARE GIRDING FOR BATTLE,

EVERYONE IS

GETTING INTO THE ACT INCLUDING CONGRESSMEN AND STATE

LEGISLATORS.

THE STRONG POLICY OF THIS STURDY NATION FAVORS

FREE AND OPEN COMPETITION,

DOCTORS AND LAWYERS LONG HAVE BEEN

AMONG THE MOST VOCAL SUPPORTERS OF THE FREE ENTERPRISE SYSTEM -

BUT UNFORTUNATELY THEIR DEVOTION TO THAT PRINCIPLE HAS OFTEN

-29-

FOR MANY OF THEM ENDED AT THE LIP,

IN FIFTEEN OR TWENTY YEARS OR MAYBE BUT NOT

LIKELY SOONER DOCTORS AND LAWYERS WILL BECAUSE OF

GOLDFARB COMPETE FREELY AND FIERCELY AND YET STILL PRO-

FESSIONALLY WITH OTHER DOCTORS AND OTHER LAWYERS AND

OTHER PROFESSIONALS PARA-PROFESSIONALS BUSINESSES -

AND COMMERCIAL ENTERPRISES AND I RE-ITERATE THAT ELIMINATION

OF EXISTING STRICTURES ON COMPETITION WITHIN THE PROFESSIONS

WILL BE PRIMARILY AN ACTUALITY BECAUSE OF THE IMPETUS GIVEN

BY GOLDFARB THUS OR SO IT SEEMS TO ME THE PUBLIC

INTEREST WILL BE WELL SERVED BECAUSE OF "GOLDFARB".

PROFESSIONS WILL BE STRONGER BECAUSE OF GOLDFARB,

THE

THE

U. S. SUPREME COURT WAS RIGHT ONCE AGAIN.

GOLDFARB WILL IN THE LONG RUN HAVE A BENEFICIAL

IMPACT ON BOTH THE MEDICAL AND LEGAL PROFESSION AND THUS

-30-

ON THE AMERICAN MEDICAL ASSOCIATION AND THE AMERICAN BAR

ASSOCIATION.

(THANK YOU)

-31-

1. LAS VEGAS WASHROOM

2. LITTLE BIRD

3. GUILLOTINE

EVEN WHEN WE HAVE THE SAME FACTS WE DO NOT

ALL REACH THE SAME CONCLUSION.

IT IS NOT ALWAYS YOUR ENEMY WHO PUTS YOU IN IT

AND IT IS NOT ALWAYS YOUR FRIEND WHO PULLS YOU OUT OF IT.

IF THE THING IS WORKING DON'T TAMPER WITH IT

JUST TO MAKE IT PERFECT.

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 175

VOLUME XII

AMERICAN LAW INSTITUTE-AMERICAN BAR ASSOCIATION
COMMITTEE ON CONTINUING PROFESSIONAL EDUCATION
4025 CHESTNUT STREET, PHILADELPHIA, PENNSYLVANIA 19104 215 3887 3000

executivee Director
AUL A. WOLKIN

Office of Periodicals
Director
MEYER KRAMER
Assistant Director
MARYANNE CULLEN
Assistant to the Director
REBECCA GILES

May 25, 1977

Chesterfield Smith,
Holland & Knight
92 Lake Wire Drive
Lakeland, FL 33802

Esquire

Dear Mr. Smith,

Enclosed is an edited copy of your remarks at the ALI-ABA
Invitational Conference on the Ethical Problems of Large Law
Firms. The article is scheduled to appear in the June 17th
issue of the ALI-ABA CLE Review. If there are any changes that
you wish to make, please inform us as soon as you possibly can.

We are most grateful for
thoughts with our readers.

the opportunity of sharing your

Sincerely yours,

Meyer ramer
Editor, CLE Review

mk/jt

Enclosure

chairman: NORRIS DARRELL, New York, New York, Chairman of the Council, American Law Institute 0 Vice Chairman: WM. B. SPANN, JR., Atlanta, Georgia, President-
.:ect, American Bar Association C A. G. CLEVELAND, JR., Atlanta, Georgia D HASKELL COHN, Boston, Massachusetts 0 JOHN W. CUMMISKEY, Grand Rapids, Michigan
'El R. AMMI CUTTER, Cambridge, Massachusetts 0 ROBERT K. EMERSON, Huntington, West Virginia D H. VERNON ENEY, Baltimore, Maryland D HERSCHEL H. FRIDAY,
Little Rock, Arkansas 0 MENDES HERSHMAN, New York, New York El A. LEO LEVIN,. Philadelphia, Pennsylvania 0 CARL McGOWAN, Washington, D.C. E S. DAVID PESHKIN,
Des Moines, Iowa El WILLIAM PINCUS, New York, New York [ MILLARD H. RUUD, Washington, D.C. 0 SHERWIN P. SIMMONS. Tampa. Florida 0 JUSTIN A. STANLEY,
Chicago, Illinois 0 HAROLD J. SULLIVAN, Oklahoma City, Oklahoma El LEONARD J. THEBERGE, Washington, D.C. El HERBERT WECHSLER, New York, New York

THE LAWYER'S RESPONSIBILITY
FOR PROFESSIONAL COMPETENCE

THE UNITED STATES IS PASSING THROUGH AN EPOCH

OF EVER ACCELERATING COMPLEXITIES IN ALMOST EVERY ASPECT

OF THE LIFE OF ITS CITIZENS,

PERHAPS THAT CIRCUMSTANCE

PLACES UPON LAWYERS BOTH INDIVIDUALLY AND COLLECTIVELY -

ENLARGED ETHICAL RESPONSIBILITIES FOR PROFESSIONAL FITNESS --

PARTICULARLY RESPONSIBILITY FOR THE LAWYER HIMSELF OR

HERSELF AND THOSE LAWYERS WITH WHOM HE OR SHE PRACTICES

LAW.

IF THAT BE SO THIS ETHICAL PROGRESSION BY THE

ORGANIZED BAR IS NOT ABNORMAL,

IN MY OWN TIME -

DISCIPLINARY MEASURES FOR PARTICULAR ETHICAL VIOLATIONS

HAVE EVOLVED FROM CLUCKING DISAPPROVAL TO DISBARMENT.

INITIALLY IN MY EXPERIENCES AS A BAR OFFICIAL I

JOINED IN REFUSING TO DISCIPLINE LAWYERS FOR NEGLIGENCE,

THE PROFESSIONAL INCOMPETENCE OF A MEMBER OF THE BAR WAS

NOT EVEN DISCUSSED THEN AS GROUNDS FOR DISCIPLINARY

SANCTION.

INDEED IT WAS RATIONALIZED THAT TO DO SO

WOULD BE CONTRARY TO THE STATE CERTIFICATION THAT THE

LAWYER IS COMPETENT TO RENDER LEGAL SERVICES TO THE

CONSUMING PUBLIC.

ALL OF THAT HAS CHANGED FOR ME

AND FOR THE ORGANIZED BAR OR AT LEAST IT IS RAPIDLY

CHANGING.

THE ETHICAL CODES OF LAWYERS BEING ASPIRATIONAL

STANDARDS OF PROFESSIONAL PERFORMANCE AT THE TOP AND

DISCIPLINARY RULES GOVERNING LAWYER CONDUCT AT THE BOTTOM -

-2-

HAVE OF COURSE DEVELOPED TRADITIONALLY TO REQUIRE EVER

MORE OF THOSE PERSONS WHO WEAR THE LEGAL MANTLE. IN

MOST JURISDICTIONS REPEATED OR GROSS NEGLIGENCE BY A

LAWYER NOW WARRANTS THE SEVEREST CENSURE.

NO LONGER

DO WE AS A COLLECTIVE PROFESSION ALLOW MARGINAL LAWYERS

REPEATEDLY TO ACCEPT LEGAL MATTERS THAT THEY CANNOT

PROFICIENTLY HANDLE.

INDEED THE TIME HAS COME FOR

A RECOGNITION BY THE ORGANIZED BAR AS AN ETHICAL PRINCIPLE

THAT EVERY LAWYER IS ETHICALLY OBLIGATED BOTH TO BE

INDIVIDUALLY COMPETENT AND WITHIN THE BOUNDS OF REASON -

ALSO TO SEE THAT ALL OTHER LAWYERS CONTINUOUSLY MAINTAIN

MINIMUM STANDARDS OF PROFESSIONAL FITNESS.

CERTAINLY,

A LAWYER HAS A PECULIAR PROFESSIONAL OBLIGATION TO INSURE

-3-

PROFESSIONAL COMPETENCE FOR HIS PARTNERS AND ASSOCIATES.

OBVIOUSLY HE IS CONCERNED BECAUSE LEGAL COMPETENCE IS

THE FIRM'S STOCK IN TRADE,

HE ALSO IS CONCERNED BECAUSE

OF POSSIBLE MALPRACTICE BUT I SUGGEST ALSO THAT THERE

IS AS WELL AN ETHICAL OBLIGATION EVOLVING AND YET

UNCLEAR BUT ON THE WAY.

OF COURSE AS ALL LAWYERS NOW KNOW CONTINUING

LEGAL EDUCATION REPRESENTS ONE OF THE MORE IMPORTANT TOOLS

FOR ACHIEVING ENHANCED LAWYER COMPETENCE. AS THE PACE

OF SOCIETY QUICKENS SO DOES THAT OF THE LAW. THE

RISING EXPECTATIONS EDUCATION AND SOPHISTICATION OF

THE PUBLIC REQUIRE FURTHER THAT LAWYERS BE EVEN BETTER

PREPARED THAN FORMERLY TO HANDLE CLIENT PROBLEMS PROPERLY.

-4-

MODERN LAWYERS MUST CONTINUALLY UPDATE THEIR KNOWLEDGE

AND ENHANCE THEIR SKILLS IF THEY ARE TO PROVIDE QUALITY

LEGAL SERVICE AT REASONABLE COST TO AS MANY CLIENTS AS

POSSIBLE,

CERTAINLY THERE IS A CONSENSUS AMONG

LARGE FIRM LAWYERS THAT POST-ADMISSION EDUCATION FOR ALL

PARTNERS AND ALL ASSOCIATES IS AN ABSOLUTE NECESSITY,

BUT CONTINUING LEGAL EDUCATION BE IT VOLUNTARY

OR COMPULSORY IS NOT ENOUGH,

LARGE LAW FIRMS MUST

IMPLEMENT PROGRAMS FOR THE PERIODIC EVALUATION AND RE-

EVALUATION OF PROFESSIONAL FITNESS OF FIRM LAWYERS.

PEER GROUP EVALUATION THE DETERMINATION BY

THE LAW FIRM AS AN ENTITY OF THE CURRENT COMPETENCE OF

THE FIRM'S LAWYERS BOTH PARTNERS AND ASSOCIATES -

-5-

SHOULD BE HELD AT LEAST ONCE A YEAR.

SYSTEM BASED UPON A GENERAL CONSENSUS IS ESTABLISHED

FOR THE PERIODIC REVIEW OF ALL FIRM LAWYERS EACH LAWYER

CAN OBTAIN AN IDEA OF HIS STRENGTHS AND WEAKNESSES AND

HIS RATE OF PROGRESS IN THE OFFICE AND THEN ATTEMPT TO DO

SOMETHING TO REMOVE DEFICIENCIES.

IT IS MOST IMPORTANT

THAT HE OR SHE HAVE AN OPPORTUNITY TO CORRECT HIS OR HER

PROFESSIONAL FAULTS.

IN THAT PERIODIC EVALUATION CRITICISM SHOULD BE

COUPLED WITH A STRONG MEASURE OF ENCOURAGEMENT WHENEVER

DESIRED;

OTHERWISE THE EVALUATION CAN CAUSE AS MANY

PROBLEMS AS BENEFITS,

IF A LAWYER DOES NOT HAVE IT

WITHIN HIS POWER TO MEASURE UP TO FIRM STANDARDS AND TO

-6-

IF A REGULAR

BE A SOUND CAREFUL AND COMPETENT LAWYER THE SOONER

THIS FACT IS DISCOVERED BY THE FIRM AND HIS OR HER DEPARTURE

ARRANGED THE BETTER WILL BE THE CHANCE OF ELIMINATING ONE

MORE FACTOR BEARING ADVERSELY UPON THE FIRM.

WHILE I UNDERSTAND THAT MOST FIRMS NOW PERIODICALLY

EVALUATE THEIR ASSOCIATES I ALSO UNDERSTAND THAT MOST DO

NOT EVALUATE THEIR PARTNERS.

I AM CONVINCED THAT BENEFITS

CAN BE OBTAINED FROM PERIODIC EVALUATIONS OF THE PARTNERS

THEMSELVES.

ADMISSION TO MEMBERSHIP IN THE FIRM DOES

NOT MEAN THAT THE NEW -- OR INDEED THE OLD -- PARTNER'S

QUALIFICATIONS PUT HIM BEYOND THE NEED FOR FURTHER CRITICISM

OR IMPROVEMENT,

IN FACT THE INCREASED RESPONSIBILITIES

OF BEING A PARTNER MAY REQUIRE THE ADVICE HELP AND

-7-

CRITICISM THAT ONLY HIS PARTNERS CAN SUPPLY AND HE

PROBABLY NEEDS NOW MORE THAN EVER.

PARTNERS OF COURSE GENERALLY DO NOT WANT

TO CRITIQUE THEIR PARTNERS' WORK,

IT WILL TAKE STRONG

LEADERSHIP AND INSISTENCE UPON PARTNER EVALUATION AS A NEW

TECHNIQUE TO ESTABLISH IT AS A FIRM ROUTINE,

ULTIMATELY -

HOWEVER SUCH A MEASURE WILL STRENGTHEN THE COMPETENCE OF

A FIRM,

THE LEGAL PROFESSION OWES TO SOCIETY AS A WHOLE

A GREATER RETURN FOR THE GRANT OF ITS PERSONAL SERVICE

MONOPOLY THAN HAS BEEN MADE HERETOFORE.

MALPRACTICE -

DETRIMENT IN THE ECONOMIC MARKET IS NOT ENOUGH,

PROFESSIONAL SANCTIONS ARE ALSO NEEDED.

ADMITTEDLY -

-8-

THERE ARE LAWYERS WHO DISAGREE WHO SINCERELY CONTEND

THAT THE LEGAL PROFESSION HAS LITTLE FAULT AND THAT

CHANGES ARE NOT NEEDED.

THEY EARNESTLY PROCLAIM

THAT LAWYERS WHO CONTINUALLY SEEM TO BE SEEKING PROFES-

SIONAL RESTRUCTURING ARE AGITATORS CREATING MORE PROBLEMS

THAN THEY SOLVE.

QUITE OFTEN COMPLACENT IN THEIR OWN

PRACTICE THEY SOMETIMES ASSERT THAT ALL WHO DO NOT

CHERISH THE LAW AS IT IS SHOULD LEAVE,

LOVE IT -

THEY SAY OR GO.

THEY ARE WRONG!

LEGAL PROFESSION AS IT IS.

ELIMINATION OF IMPERFECTIONS

AND IN THEIR OWN LAW FIRMS.

NO LAWYER SHOULD ACCEPT THE

LAWYERS MUST ASPIRE FOR THE

IN THEIR CHOSEN PROFESSION

THOSE LAWYERS WHO CANNOT

-9-

OVERLOOK THE LEGAL PROFESSION'S WARTS FOR INSTANCE -

ITS FAILURE TO MAKE COMPETENT LEGAL SERVICES AT

REASONABLE COST READILY AVAILABLE TO ALL SEEM TO ME

TO BE THE GOOD GUYS THE WHITE HATS.

IT IS THOSE

LAWYERS WHO PLACIDLY ACCEPT THE PERVERSIONS THE

INEFFICIENCIES THE INADEQUACIES AND THE HYPOCRISIES

IN THE LEGAL PROFESSION WHO DO NOT HONOR AND CHERISH

THEIR CHOSEN CALLING.

THEY SEEM TO ME TO BE THE

BAD GUYS -- THE BLACK HATS,

MY THESIS THUS IS A SIMPLE ONE.

THE PUBLIC

THAT GRANTS A SMALL SEGMENT OF THE POPULACE THE EXCLUSIVE

PRIVILEGE OF MAKING A LIVING PRACTICING LAW HAS THE RIGHT

TO DEMAND THAT THOSE SO FAVORED BE AS PROFESSIONALLY

-10-

COMPETENT AS IS REASONABLY POSSIBLE,

TRULY SHOULD BE HIS BROTHER'S KEEPER.

NOW.

EACH LAWYER

THEY ARE NOT

LAWYERS INCLUDING PARTICULARLY THOSE IN

LARGE FIRMS DO HAVE A JOINT AND SEVERAL OBLIGATION

FOR THE PROFESSIONAL FITNESS OF ALL LAWYERS,

LACK

OF FITNESS IF UNREASONABLY IGNORED WARRANTS PROFESSIONAL

SANCTIONS INCLUDING IN EXTREME CASES REMOVAL FROM THE

LEGAL PROFESSION AND FROM THE LAW FIRM.

-11-

REMARKS BY:

CHESTERFIELD SMITH
LAWYER
LAKELAND, FLORIDA

BEFORE:

ALI/ABA COMMITTEE
ON CONTINUING PROFESSIONAL
EDUCATION (DEAN T. VOORHEES)

PLACE:

WASHINGTON, D. C.

DATE:

APRIL 22 and APRIL 23, 1977

TITLE:

ETHICAL PROBLEMS OF LARGE
LAW FIRMS

THIS STURDY NATION WHICH WE CALL THE UNITED STATES

IS PASSING THROUGH AN EPOCH OF EVER ACCELERATING COMPLEXITIES

IN ALMOST EVERY ASPECT OF THE LIFE OF ITS CITIZENS.

PERHAPS

THE QUESTION SHOULD BE ASKED WHETHER THAT CIRCUMSTANCE PLACES

UPON LAWYERS ENLARGED ETHICAL RESPONSIBILITIES FOR PROFESSIONAL

FITNESS BOTH INDIVIDUALLY AND COLLECTIVELY -- PARTICULARLY

RESPONSIBILITY FOR THE LAWYER HERSELF OR HIMSELF AND THOSE

LAWYERS WITH WHOM THAT LAWYER PRACTICES LAW,

IF THAT BE SO SUCH ETHICAL PROGRESSION BY THE

ORGANIZED BAR IS NOT ABNORMAL.

IN MY OWN TIME I HAVE

SEEN DISCIPLINARY MEASURES FOR PARTICULAR ETHICAL VIOLATIONS

EVOLVE FROM CLUCKING DISAPPROVAL TO DISBARMENT,

INITIALLY -

IN MY EXPERIENCES AS A BAR OFFICIAL I JOINED WITH OTHERS IN

REFUSING TO DISCIPLINE LAWYERS FOR NEGLIGENCE,

THE

-1-

PROFESSIONAL INCOMPETENCE OF A MEMBER OF THE BAR WAS NOT

EVEN DISCUSSED THEN AS GROUNDS FOR DISCIPLINARY SANCTIONS.

INDEED IT WAS RATIONALIZED THAT TO DO SO WOULD BE CONTRARY

TO THE STATE COURT ORDER CERTIFYING THAT LAWYER AS ONE

COMPETENT TO RENDER LEGAL SERVICES TO THE CONSUMING PUBLIC.

ALL OF THAT HAS CHANGED FOR ME AND FOR THE ORGANIZED BAR -

OR AT LEAST IT IS RAPIDLY CHANGING.

THE ETHICAL CODES OF LAWYERS BEING ASPIRATIONAL

STANDARDS OF PROFESSIONAL PERFORMANCE AT THE TOP AND BEING

DISCIPLINARY RULES GOVERNING LAWYER CONDUCT AT THE BOTTOM -

HAVE OF COURSE DEVELOPED TRADITIONALLY TO REQUIRE EVER MORE

OF THOSE PERSONS WHO WEAR THE LEGAL MANTLE,

IN MOST

-2-

JURISDICTIONS REPEATED OR GROSS NEGLIGENCE BY A LAWYER

NOW WARRANTS THE SEVEREST CENSURE.

NO LONGER DO WE AS

A COLLECTIVE PROFESSION ALLOW MARGINAL LAWYERS REPEATEDLY

TO ACCEPT LEGAL MATTERS WHICH THEY CANNOT PROFICIENTLY HANDLE,

INDEED I SUGGEST THE TIME HAS NOW COME FOR A RECOGNITION

BY THE ORGANIZED BAR AS AN ETHICAL PRINCIPLE THAT EVERY LAWYER

IS ETHICALLY OBLIGATED BOTH TO BE INDIVIDUALLY COMPETENT AND

WITHIN THE BOUNDS OF REASON ALSO TO SEE THAT ALL OTHER LAWYERS

CONTINUOUSLY MAINTAIN MINIMUM STANDARDS OF PROFESSIONAL FITNESS,

CERTAINLY A LAWYER HAS A PECULIAR PROFESSIONAL OBLIGATION TO

INSURE PROFESSIONAL COMPETENCE FOR HIS PARTNERS AND ASSOCIATES.

HE IS OF COURSE CONCERNED BECAUSE LEGAL COMPETENCE IS THE FIRM'S

STOCK IN TRADE. HE ALSO IS CONCERNED BECAUSE OF POSSIBLE

MALPRACTICE BUT I SUGGEST ALSO THAT THERE IS AN ETHICAL

OBLIGATION EVOLVING AND YET UNCLEAR BUT ON THE WAY,

OF COURSE AS ALL LAWYERS NOW KNOW CONTINUING

LEGAL EDUCATION REPRESENTS ONE OF THE MORE IMPORTANT TOOLS

FOR ACHIEVING ENHANCED LAWYER COMPETENCE,

SOCIETY QUICKENS SO DOES THAT OF THE LAW.

AS THE PACE OF

THE RISING

EXPECTATIONS EDUCATION AND SOPHISTICATION OF THE PUBLIC

REQUIRE FURTHER THAT LAWYERS BE EVEN BETTER PREPARED THAN

FORMERLY PROPERLY TO HANDLE CLIENT PROBLEMS,

MODERN

LAWYERS MUST CONTINUALLY UPDATE THEIR KNOWLEDGE AND ENHANCE

THEIR SKILLS IF THEY ARE TO PROVIDE QUALITY LEGAL SERVICE

AT REASONABLE COST TO AS MANY CLIENTS AS POSSIBLE, CERTAINLY

THERE IS NOW A CONSENSUS AMONG LARGE FIRM LAWYERS THAT POST-

ADMISSION EDUCATION FOR ALL PARTNERS AND ALL ASSOCIATES IS AN

ABSOLUTE NECESSITY.

BUT CONTINUING LEGAL EDUCATION BE IT VOLUNTARY

OR COMPULSORY IS NOT ENOUGH,

LARGE LAW FIRMS MUST NOW

IMPLEMENT PROGRAMS FOR THE PERIODIC EVALUATION AND RE-

EVALUATION OF PROFESSIONAL FITNESS OF FIRM LAWYERS,

PEER GROUP EVALUATION THE DETERMINATION BY THE

LAW FIRM AS AN ENTITY OF THE CURRENT COMPETENCE OF THE FIRM'S

LAWYERS BOTH PARTNERS AND ASSOCIATES SHOULD BE ACCOMPLISHED

BY GIVING EACH OF THEM AN EVALUATION NOT LESS FREQUENTLY THAN

ONCE A YEAR.

IF A REGULAR SYSTEM IS ESTABLISHED FOR THE

PERIODIC REVIEW OF ALL FIRM LAWYERS BASED UPON A GENERAL

CONSENSUS EACH LAWYER CAN OBTAIN AN IDEA OF HIS STRENGTHS

AND WEAKNESSES AND HIS RATE OF PROGRESS IN THE OFFICE AND THEN

ATTEMPT TO DO SOMETHING TO REMOVE DEFICIENCIES.

IT IS MOST

	Table of Contents
	Chester Berdell citation, fifty...
	"Dissent and the law since the...
	"The probable effect of the Goldfarb...
	Remarks by Chesterfield Smith:...
	"Random thoughts about recertification,...
	Remarks by chesterfield Smith:...
	Refer to speech #10
	Commencement address - Western...
	Excerpt from remarks to graduating...
	Remarks by chesterfield Smith before:...
	Reprint of remarks by Mr. Smith:...

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