Speeches by Chesterfield - Vol. XVI, 211-231. 1979-1981

VOLUME: XVI TITLE OR GROUP ADDRESSED

#211 "PUBLIC CRITICISM OF THE
JUDICIARY -- IS IT CAUSED
BY A DEFAULTING EXECUTIVE
OR LEGISLATURE?"
BEFORE: 14th ANNUAL CONFERENCE
NATIONAL ASSOCIATION OF TRIAL
COURT ADMINISTRATORS
SHERATON SAND CASTLE
SARASOTA, FLORIDA
TUESDAY, JULY 10, 1979

#212 INVESTITURE OF THE HONORABLE
WILLIAM J. CASTAGNA, JUDGE,
U. S. DISTRICT COURT OF THE
MIDDLE DISTRICT OF FLORIDA
U. S. COURTHOUSE AND POST OFFICE
BUILDING, TAMPA, FLORIDA
FRIDAY, SEPTEBMER 14, 1979

#213 MORRISON LECTURE: "THE OLD LAWYER
SAID: I LOOK OUT FOR MY PAYING
CLIENTS' -- THE YOUNG LAWYER
RESPONDED: "BUT GOOD LAWYERS MUST
ALSO DO SOME FREE PUBLIC SERVICE."
Before THE STATE BAR OF CALIFORNIA
BONAVENTURE HOTEL, LOS ANGELES,
CALIFORNIA, MONDAY, SEPTEMBER 17,
1979

#214 (on mag cards)ADDRESS BEFORE NOVA UNIVERSITY
CENTER FOR THE STUDY OF LAW
FORT LAUDERDALE, FLORIDA. TITLE:
THE OLD LAWYER SAID: "I LOOK OUT
FOR MY PAYING CLIENTS" -- THE
YOUNG LAWYER RESPONDED: "BUT
GOOD LAWYERS MUST ALSO DO SOME
FREE PUBLIC SERVICE."
FRIDAY, NOVEMBER 16, 1979

#215 ADDRESS BEFORE NOVA UNIVERSITY
CENTER FOR THE STUDY OF LAW
FORT LAUDERDALE, FLORIDA.
(Same Speech As Above -#214-
however, done in lower case and
placed on System 6)
FRIDAY, NOVEMBER 16, 1979

# 216 ADDRESS BEFORE EXCHANGE
CLUB OF TAMPA, SHERATON
HOTEL, TAMPA, FLORIDA,
MONDAY, DECEMBER 10, 1979
Noon
TITLE: PUBLIC CRITICISM OF
THE JUDICIARY -- IS IT CAUSED
BY A DEFAULTING EXECUTIVE
OR LEGISLATURE?
TWENTY MINUTES

#217 Address to Mid-Winter Meeting of
Young Lawyers' Section of
American Bar Association
Hyatt Regency Hotel, Atlanta, Ga,
Saturday, February 10, 1979 Noon
On Mag Cards------- IMPERIAL JUDICIAL -- OR IS IT A
DEFAULTING EXECUTIVE OR LEGISLATE
** Revision of speech # 206 **

#218 Address at Corporate Counsel
Seminar, Diplomat Resort &
Country Club, Hollywood, Florida
Thursday, March 20, 1980
12:00 O'Clock Noon
On Mag Cards--------Title: Random Wanderings Through
(Trish Yates) the Pig-Trails of the Law and
the Legal Profession
Time: Thirty Minutes

#219 Remarks before Judicial/Media
Seminar, Campus of Northwestern
State University, Natchitoches,
Louisiana, Friday, April 11, 198C
Noon
Title: Public Criticism of the
Judiciary -- Is It Caused By
the Default of Other Governmental
Institutions?
Time: Twenty Minutes

#220 Remarks at Annual Meeting, Detroi
Bar Association, Book Cadillac
Hotel, Detroit, Michigan, Thursda
May 1, 1980, 7:00 PM
Title: Random Current Thoughts
of a Trial Lawyer About the Law -
The Courts And the Responsibili
ties of Lawyers
Time: Twenty Minutes

VOLUME XVI

#221 REMARKS AT BPI ANNUAL LAW LUNCHEON
THE CHICAGO PUBLIC LIBRARY
CULTURAL CENTER
PRESTON BRADLEY HALL
CHICAGO, ILLINOIS
"RANDOM CURRENT THOUGHTS OF A
TRIAL LAWYER ABOUT THE LAW -
THE COURTS AND THE RESPONSIBILITIES
OF LAWYERS"
MAY 1, 1980

#222 REMARKS AT ANNUAL LAW DAY BANQUET
FACULTY & STUDENTS, COLLEGE OF LAW
FLORIDA STATE UNIVERSITY
SILVER SLIPPER RESTAURANT
TALLAHASSEE, FLORIDA
SATURDAY, MAY 3, 1980
"RANDOM CURRENT THOUGHTS OF A
TRIAL LAWYER ABOUT THE LAW -
THE COURTS AND THE RESPONSIBILITIES
OF LAWYERS"

#223 HEADLINERS BREAKFAST
DAYTONA BEACH AREA CHAMBER OF COMMERCE
AMERICANO BEACH LODGE
DAYTONA BEACH, FLORIDA
THURSDAY, MAY 8, 1980
"RANDON CURRENT THOUGHTS OF A
TRIAL LAWYER ABOUT THE LAW -
THE COURTS AND THE RESPONSIBILITIES
OF LAWYERS"

#224 RE: ERA STATEMENT
SUBMITTED TO LEAGUE OF WOMEN VOTERS
DECEMBER 23, 1980
For publication in their newsletter
as the first of a series
(Referenced here for convenience)

#225 STATEMENT OF CHESTERFIELD SMITH
ON BEHALF OF THE ABA
BEFORE THE 1980 DEMOCRATIC
PLATFORM COMMITTEE
WASHINGTON, D.C.
JUNE 13, 1980

Spoke "off the cuff" before
Auburndale, Lake Alfred and
Winter Haven Bar Association
Windows-on-the-Park
Winter Haven, Florida
January 8, 1980 Noon
"Public Criticism of the Judiciary -
Is it Caused by a Defaulting
Executive or Legislature?"

Reference only:

Spoke "off the cuff" at
Farewell Dinner for
Thomas E. (Red) Holcom
Upon his retirement from the
Florida Phosphate Council
January 16, 1981 7:00 p.m.
Lakeland Yacht Club

Reference only:

VOLUME XVI

#226 ADDRESS BEFORE
ORLANDO ROTARY CLUB
FIRST FEDERAL BUILDING
MAGNOLIA & CHURCH STREETS
ORLANDO, FLORIDA
WEDNESDAY, NOVEMBER 5, 1980
"RANDOM CURRENT THOUGHTS OF
A TRIAL LAWYER ABOUT THE LAW -
AND THE UNMET RESPONSIBILITIES
OF LAWYERS AND OTHERS"

#227 ADDRESS BEFORE
CITIZENS' CONFERENCE ON THE
GEORGIA JUDICIAL SYSTEM
FALCON INN
SUWANEE, GEORGIA
FEBRUARY 20, 1981 (Noon)
"A JUDICIAL SYSTEM MUST RESPOND
TO THE PEOPLE'S NEEDS"

#228 REMARKS OF CHESTERFIELD SMITH AT
INVESTITURE OF CLINTON CURTIS
CIRCUIT COURT OF THE TENTH JUDICIAL
CIRCUIT OF FLORIDA, BARTOW, FLORIDA
FRIDAY, MARCH 6, 1981, 4:00 P.M.
Time: Eight Minutes

#229 Baron de Hirsch. Meyer Lecture Series
University of Miami School of
Law-
Coral Gables, Florida
Friday', April 3, 1981
DO LAWYERS HAVE AN AFFIRMATIVE
DUTY TO THE PUBLIC BY REASON
OF THEIR PROFESSIONAL STATUS
TO DO SOME FREE SERVICE

#230 Remarks of Chesterfield Smith at
RETIREMENT CEREMONIES FOR
JUDGE WINSTON E. ARNOW -
Pensacola, Florida
May 7, 1981

#231 ADDRESS BEFORE
SOUTHEASTERN CLAIMS ASSOCIATION
SEMINAR
Daytona Hilton Hotel
Daytona Beach, Florida
Thursday, June 11, 1981
FUTURE OF TORT LITIGATION

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 211

VOLUME XVI

REMARKS OF:

CHESTERFIELD SMITH
LAWYER
TAMPA, FLORIDA

BEFORE:

14TH ANNUAL CONFERENCE
NATIONAL ASSOCIATION OF
TRIAL COURT ADMINISTRATORS

SHERATON SAND CASTLE
1540 BENJAMIN FRANKLIN DRIVE
SARASOTA, FLORIDA

DATE.:

TUESDAY, JULY 10, 1979
1:00 .P, M

TITLE:

PUBLIC.CRITICISM OF THE
JUDICIARY -- IS IT CAUSED
BY A DEFAULTING EXECUTIVE
OR LEGISLATURE?

'T TWENTY MINUTES

~-L: a Ir ~:
'' *'
i' '' ii

TIME:

PRESIDENT JIMMY CARTER RECENTLY CALLED UPON THE

LEGAL PROFESSION TO "MAKE THE ADVERSARY SYSTEM LESS

NECESSARY FOR THE DAILY LIVES OF MOST AMERICANS -- AND

MORE EFFICIENT WHEN IT MUST BE USED,"

ADDED MORE POINTEDLY:

THE PRESIDENT

"BY RESORTING TO LITIGATION AT

THE DROP OF A HAT BY REGARDING THE ADVERSARY SYSTEM AS

AN END IN ITSELF WE HAVE MADE JUSTICE MORE CUMBERSOME -

MORE EXPENSIVE AND LESS EQUAL THAN IT OUGHT TO BE,"

TO AN EXTENT THAT CRITICISM OF THE EVER-

EXPANDING ROLE THAT THE JUDICIAL SYSTEM PLAYS IN AMERICAN

SOCIETY IS MERITED,

THOSE OF US WHO-ARE IN THE JUSTICE

BUSINESS KNOW THAT MANY REPEATEDLY COMPLAIN THAT THE COURTS

HAVE ARROGATED TO THEMSELVES MATTERS BEYOND THEIR COMPETENCE

-1-

SATISFACTORILY TO HANDLE IN THEIR WORDS THAT THE COURTS

WITHOUT A PUBLIC MANDATE SIMPLY HAVE GROWN TOO BIG FOR THEIR

BRITCHES.

THEY ASSERT THAT MANY JUDGES BOTH STATE AND

FEDERAL SANCTIMONIOUSLY AND SELF-RIGHTEOUSLY VIEW THEM-

SELVES AS SOCIETY'S WILD CARD THE ULTIMATE PROBLEM SOLVER WHO

ALWAYS MUST ACT WHEN OTHER GOVERNMENT INSTITUTIONS DO NOT,

WHILE I AS A TRIAL LAWYER WELL KNOW THAT BLANKET CRITICISM OF

JUDGES IS TOTALLY UNMERITED I ALSO ACKNOWLEDGE BECAUSE IT

IS SO THAT SOME JUDGES IN RECENT YEARS REALLY HAVE BEEN ROVING

ALL OVER THE LOT -- REALLY HAVE BEEN DOING A GREAT AMOUNT OF

JUDICIAL LABOR THAT HAS EXTENDED JUDICIAL TRADITIONS,

IN SMALL DISCUSSIONS IN CONVERSATIONAL GROUPS NON-

LAWYER CITIZENS AS. WE ALL KNOW DO GRIPE WITH CONVICTION

-2-

THAT THE COURTS OF TODAY ARE WITHOUT PORTFOLIO OR AUTHORITY -

ATTEMPTING OFTEN UNSUCCESSFULLY TO RUN SCHOOLS AND PRISON

SYSTEMS AND TO REGULATE ALMOST EVERYTHING AND AS THOSE

CITIZENS SAY THINGS THAT THEY KNOW LITTLE ABOUT.

BUT OF

COURSE.THAT LAY VERSION OF WHAT COURTS ARE DOING CONCEALS MORE

THAN IT REVEALS. ALMOST ALWAYS IT I'S MADE IN VERY GENERAL

TERMS WITHOUT SPECIFICITY, IN VIRTUALLY ALL OF THE CASES IN

WHICH JUDGES HAVE ENTERED REMEDIAL AREAS THAT IN THE JUDGMENT

OF SOME MORE PROPERLY AND MORE EFFECTIVELY SHOULD HAVE BEEN

DEALT WITH BY OTHER SOCIETAL INSTITUTIONS THE COURTS HAVE

DONE SO BY REASON OF THE DEFAULT OF THOSE OTHER SYSTEMIC BRANCHES -

AND USUALLY IN MY JUDGMENT BY REASON OF THE SPECIFIC DEFAULT

OF THE LEGISLATIVE AND EXECUTIVE BRANCHES OF THE STATE AND

-3-

THE COURTS BY THE OVERWHELMING CHOICE

OF THE PEOPLE SEEMINGLY HAVE BECOME THE FORUM FOR REDRESS

OF ALL THINGS UNFAIR IN LIFE TRULY THE OPPRESSED CITIZEN'S

LAST HOPE BECAUSE THE PEOPLE HAVE LEARNED THAT THE COURT WILL

MAKE THE HARD CHOICES THAT OTHER GOVERNMENT OFFICIALS DUCK,

SOLVING THE VEXING PROBLEM OF WHAT A JUDGE SHOULD DO

WHEN MATTERS IGNORED BY OTHERS COME INTO THE COURTS PROBABLY

IS THE MOST DIFFICULT SINGLE TASK FACED BY THOSE OF US WHO

WISH TO INSURE THE CONTINUING VIABILITY OF THE COURTS AS WE

HAVE KNOWN THEM AS AN INSTITUTION.

I MYSELF DO NOT KNOW

WHAT WE SHOULD DO ALTHOUGH IN MOST CASES I READILY UNDERSTAND

WHY THE INVOLVED JUDGE DID WHAT HE DID,

TO ME JUDGES GET INVOLVED IN DECREEING DRASTIC

FEDERAL GOVERNMENT.

REMEDIES AGAINST THE GOVERNMENT IN TOUGH AREAS PRIMARILY

BECAUSE IT IS THEIR RESPONSIBILITY TO SEE THAT JUSTICE IS DONE -

AND IF THEY DO NOTHING JUSTICE WILL NOT BE DONE,

GENERALLY -

THE JUDGE BEGINS BY ONLY HOLDING WHAT THE GOVERNMENT CANNOT DO --

THE JUDGE DOES NOT POINT OUT WHAT GOVERNMENT CAN DO, SOMETIMES

THAT IS ENOUGH,

BUT MORE OFTEN THE GOVERNMENT THEN DOES

NOTHING AND THE ONLY JUDICIAL ALTERNATIVE THEN IS FOR A

COURT DECREED RESOLUTION.

UNDER SUCH CIRCUMSTANCES THE

ANSWER TO SUCH JUDICIAL ACTIVISM MOST CERTAINLY IS NOT TO CLOSE

.THE COURT HOUSE DOOR.

IT IS TO MAKE THOSE OTHER GOVERNMENTAL

INSTITUTIONS DO RIGHT.

THE TRUTH IS THAT IN THE MAIN THE COURTS HAVE

PERFORMED WELL PERHAPS TOO WELL,

I PERSONALLY BELIEVE

-5-

THAT THE MOST SUCCESSFUL GOVERNMENT INSTITUTION-OF ALL TIMES

HAS BEEN THE SUPREME COURT OF THE UNITED STATES,

OUR

BLINDFOLDED FIGURE HOLDING THE SCALES OF JUSTICE HAS BEEN

WORLDWIDE BOTH A SYMBOL AND A 'REALITY.

THE COURTS HAVE

ACHIEVED SUCCESS WHERETHE OTHER-INSTITUTIONS HAVE NOT -

SUCCESS AS SEEN BY THE NEGLECTED AND IGNORED AND THE POOR

AND THE WEAK AS BEING.A MEANINGFUL VEHICLE FOR ACHIEVING

DESIRABLE SOCIAL CHANGE,

THAT VERY SUCCESS HAS CREATED THIS PROBLEM:

AS RELIANCE UPON THE COURTS HAS INCREASED.- THERE HAS BEEN

A CONCOMMITANT DECREASE IN THE INSTITUTIONAL POWER OF THE

EXECUTIVE AND LEGISLATIVE BRANCHES OF GOVERNMENT,

DEMOCRATIC INSTITUTIONS TODAY SIMPLY ARE NEITHER

-6-

AS DEMOCRATIC NOR EFFECTIVE AS THEY ONCE WERE.

EXECUTIVE AND LEGISLATIVE BRANCHES HAVE BECOME INCAPABLE OF

RESOLVING TOUGHER QUESTIONS OF PUBLIC POLICY.

GOVERNMENTAL

CAREER EMPLOYEES -.WHO ACTUALLY SET MOST OFFICIAL ACTION -

ARE USUALLY AS INSULATED FROM POPULAR ACCOUNTABILITY AS

JUDGES AND OUR FRAGMENTED AND HIGHLY POLITICAL LEGISLATURES

TODAY STILL ARE NOTORIOUSLY SWAYED BY SPECIAL INTEREST GROUPS,

WHEN A POLICY DECISION IS NOT DIRECTED BY A CITIZENS CONSENSUS -

IT APPEARS THAT ALL GOVERNMENT EXCEPT THE COURTS DEFAULT -

AND RESPONSIBLE.JUDGES HAVE NO CHOICE BUT TO ACT,

THAT DEFAULT BY OTHER BRANCHES OF.GOVERNMENT IN

MY ESTIMATION HAS HURT THE JUDICIAL SYSTEM IN TWO WAYS:

QUANTITATIVELY THE COURTS ARE CARRYING TOO HEAVY A BURDEN --

BOTH THE

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 -- ORAT LEAST NOT AS WELL

EQUIPPED AS OTHER AREAS OF GOVERNMENT.

IF THE JUDICIAL SYSTEM IS TO FUNCTION AS IT WAS

DESIGNED A REWORKING OF OUR OWN CONCEPTION OF THE JUDICIAL

SYSTEM IS NOW TIMELY,

LAWYERS JUDGES AND JUDICIAL

ADMINISTRATORS SHOULD RECOGNIZE THAT JUSTICE NEED NOT

NECESSARILY EMANATE PRIMARILY FROM THE COURTS.

INDEED -

LAWYERS -JUDGES AND JUDICIAL ADMINISTRATORS MORE THAN OTHERS

HAVE AN OBLIGATION TO LOOK ELSEWHERE THAN THE COURTS TO SECURE

CONFLICT RESOLUTION,

THEY MUST CONVINCE THEIR CONSTITUENTS -

S-8-

THEIR CUSTOMERS IF YOU WILL THAT.OTHER FORUMS ARE APPROPRIATE

ARENAS FOR SEEKING REDRESS.

THE AMERICAN PUBLIC TODAY

PERCEIVES THE COURTS AS JACKS-OF-ALL-TRADES AVAILABLE TO

FURNISH THE ANSWER TO WHATEVER MAY TROUBLE US:

PROSECUTE A WAR OR MAKE PEACE?

DOES DEATH BEGIN?

SHALL WE

WHAT IS LIFE OR WHEN

SHALL WE ACHIEVE RACIAL INTEGRATION

BY CUMBERSOME BUSING OF CHILDREN TO FAR-AWAY SCHOOLS?

SHOULD WE OPERATE PRISONS AND MENTAL INSTITUTIONS?

BUILD NUCLEAR POWER PLANTS AND IF SO WHERE?

CONCORDE FLY TO OUR SHORE?

INVERSE DISCRIMINATION?

SHALL WE

SHALL THE

IS AFFIRMATIVE ACTION REALLY

SHALL THE SNAIL DARTER SURVIVE?

ALL THESE QUESTIONS ARE NOW CONTINUOUS GRIST OF THE JUDICIAL

IA LAWSUIT IS PROBABLY QUICKER

HOW

MILLS,

SHOULD THEY BE?

AND CHEAPER THAN LOBBYING OR A REFERENDUM AND MORE AUTHORI-

TATIVE THAN A PUBLIC OPINION POLL,

BUT WHAT DOES THE

RENDERING OF A HIGHLY CONTROVERSIAL LEGAL DECISION ACCOMPLISH?

IT IS SIMPLY A JUDICIAL PRONOUNCEMENT AND NOTHING MORE. IT

DOES NOT SETTLE THE DIVISIVE MORAL ETHICAL AND POLITICAL

QUESTIONS THAT LIE THEREUNDER.

IT SIMPLY IS NOT AN EXPRESSION

OF.THE POPULAR WILL NOR THE PUBLIC WEAL BUT ONLY THE JUDGMENT

OF A SINGLE JUDGE OR A SINGLE APPELLATE COURT.

NOT

SURPRISINGLY MANY WHO CHERISH JUSTICE HAVE NOW REACHED THE

CONCLUSION THAT IF THIS DEFAULT BY NON-JUDICIAL AUTHORITIES

CONTINUES TO MANDATE THIS SHIFT BY THE PEOPLE TO THE AUTHORITY

OF THE COURTS THE LIVING LAW IT ULTIMATELY WILL SEVERELY

IMPAIR OR DESTROY THE BALANCE BETWEEN THE VARIOUS BRANCHES.

-10-

OF GOVERNMENT SET FORTH IN OUR NOBLE CONSTITUTION,

IS SO AS I TOO.PERSONALLY BELIEVE THEN THE PRINCIPALTASK

FACING THOSE OF US WHO WORK IN THE LAW AND HONOR THE JUSTICE

IT APPARENTLY ALONE NOW DISPENSES IN THE DIFFICULT SOCIAL ISSUES

OF OUR TIME IS THE RESTORATION OF A.PROPER BALANCE BETWEEN ALL

THREE OF THE PRINCIPAL BRANCHES OF GOVERNMENT.

THE EXECUTIVE

AND. THE LEGISLATIVE BRANCHES MUST JOIN THE COURTS IN THE

RESOLUTION OF HARD SOCIAL PROBLEMS.

PERHAPS OUR EFFORTS TO RESTORE.THAT BALANCE SHOULD

START WITH A RECOGNITION AT LEAST BY LAWYERS JUDGES

AND JUDICIAL ADMINISTRATORS OF THE PRESENTLY UNPOPULAR VIEW

THAT OUR COURTS-REALLY SHOULD BE ONLY INSTITUTIONS OF LAST

RESORT,

COURTS SHOULD NEVER BE CONSIDERED TO BE THE FIRST

-11-

IF THAT

STOP IN CORRECTING SOCIAL INJUSTICE EVEN THOUGH MANY MODERN

LITIGANTS AND THEIR LAWYERS STEER TO THAT COURSE,

WHILE I

UNDERSTAND THE COMPULSION OF JUDGES TO ACT TO CORRECT ALL WRONGS

BROUGHTBEFORE THEM THE OVER-REACTION OF SOME JUDGES IN A FEW

INSTANCES HAS UNDERSTANDABLY LED THE PUBLIC TO BLAME ALL JUDGES.

IT IS INFREQUENT NOW TO SEE OUR COURTS GOING ALL OUT TO CONFINE

OR RESTRICT THE IMPACT OF A CONSTITUTIONAL OR STATUTORY DECISION

ONLY TO THE CASE AT HAND,

JUDGES FACED WITH AN UNCONSTITUTIONAL

LAW RARELY SEEM CONTENT WITH SIMPLY DECLARING IT TO BE SO --

INSTEAD THEY OFTEN SEEM TO PREFER SOME SORT OF SALVAGE AT THE

PRICE OF FORSAKING THEIR JUDICIAL DISPUTE-RESOLVING ROLE FOR

THAT OF THE LEGISLATIVE POLICY MAKER.

INDEED IT SEEMS

TO ME THAT MANY JUDGES FREQUENTLY DESIGN THEIR DECISION SO

-12-

THAT IT WILL HAVE THE BROADEST POSSIBLE PUBLIC IMPACT IN

EXACTLY THE SAME WAY THEY AS AN INDIVIDUAL WOULD DO IF

THAT INDIVIDUAL WAS ACTING IN A LEGISLATIVE CAPACITY,

AS FAR AS POSSIBLE WE SHOULD PRESERVE OUR JUDICIAL

FORUMS FOR DOING ONLY THAT WHICH CANNOT BE DONE ELSEWHERE,

THAT IS A SIMPLE TRUTH PERHAPS INDISPUTALBE BUT IT IS

ONE NOW ACCEPTED AT BEST ONLY BY LIP SERVICE BY MOST JUDGES -

LAWYERS AND LITIGANTS,

IT IS MY THESIS TO THIS ANNUAL

CONFERENCE OF THE NATIONAL ASSOCIATION OF TRIAL COURT

ADMINISTRATORS THAT AN URGENT QUESTION WHICH MUST BE FACED BY

THOUGHTFUL PEOPLE IS WHETHER AS A MATTER OF SOCIAL PRINCIPLE

OUR COURTS SHALL IN THE FUTURE BE ONLY THE CONFLICT-RESOLVERS -

AND NOT THE PROBLEM-SOLVERS OF OUR SOCIETY.

SHOULD NOT.

-13-

WE NOW DEMAND THAT OTHER GOVERNMENTAL INSTITUTIONS TOO DO WHAT

THEY WERE CREATED TO DO?

ADMITTEDLY JUDGES BEING HUMAN ARE NOT ADVERSE

TO THEIR ENLARGED ROLE AND EXPANDED RESPONSIBILITY,

MANY

EVEN CHERISH THEIR ENLARGED OPPORTUNITIES.

IT IS EXHILARATING

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 IN A DEMOCRATIC SOCIETY THERE HAS TO BE

NUMEROUS QUESTIONS ABOUT THOSE ALL ENCOMPASSING IMPERIAL.

PRONOUNCEMENTS MADE.BY A SINGLE JUDGE ACTING SOMEWHAT AS A

AT LEAST SUCH JUDGMENTS BOTHER ME AS

AN INDEPENDENT LAWYER.- EVEN THOUGH I WELL KNOW THAT SOME OF

THOSE JUDICIAL PRONOUNCEMENTS HAVE HAD BRILLIANT CONCLUSIONS -

HAVE ACHIEVED BENEFICIAL RESULTS WHICH. WOULD HAVE PERHAPS

BEEN IMPOSSIBLE TO ATTAIN OTHERWISE THROUGH THE POLITICAL

PROCESS,

THE ONE-MAN ONE-VOTE DECISIONOF THE UNITED STATES

SUPREME COURT IS PERHAPS THE CLEAREST EXAMPLE,

SO LET US THINK TODAY AGAIN ABOUT THE FUTURE ROLE OF

THE COURTS IN CONNECTION WITH THE EVEN BIGGER DEMANDS WHICH

INEVITABLY WILL SOON BE PLACED UPON THEM.

'OUR COUNTRY FACES

A GREAT ENERGY PROBLEM A PROBLEM RELATING TO THE DECAY OF

OUR CITIES,

ENORMOUS DEMOGRAPHIC CHANGES ARE GENERATING A

SERIES OF PROBLEMS WHICH HAVE PROVED ESPECIALLY INTRACTABLE,

-15-

MINI-LEGISLATURE,

THE RISING CRIME RATE CONTINUES TO HAVE ALL THE EARMARKS OF

A REVOLUTIONARY CHANGE IN THE PATTERNS OF OUR SOCIAL BEHAVIOR.

THE WHOLE EDUCATIONAL ESTABLISHMENT IS SHAKING WITH TREMORS

OF DISSATISFACTION AND CHANGE.

WE ARE WITNESSING QUITE

PROPERLY A SEXUAL REVOLUTION THERE HAS BEEN AN ENORMOUS

TURNAROUND IN PUBLIC ATTITUDE TO THE ENVIRONMENT -- I COULD

GO ON AND ON,

BUT DO WE AS A FREEDOM-LOVING GROUP OF

RUGGED INDIVIDUALS REALLY BELIEVE THAT THE ORDINARY NORMAL

PERSON CALLED UPON TO SIT AS A JUDGE HAS ANY SPECIAL APTITUDE

WHICH MAKES HER OR HIM ALONE SUITABLE CUSTODIANS OF THE

RESPONSIBILITY FOR THE SOLUTION OF THESE VEXING PROBLEMS?

IS THERE ANYTHING IN THE JUDICIAL MACHINERY WHICH MAKES IT A

PECULIARLY SUITABLE INSTRUMENT FOR THE RESOLUTION OF SUCH

PROBLEMS?

-16-

IT IS ONE THING FOR JUDGES TO

DECIDE BI-PARTY CONTROVERSIES AND IN SO DOING PRONOUNCE

PRINCIPALS WHICH INCIDENTALLY MAY HAVE AN EFFECT ON THE

SOLUTION OF THE UNDERLYING PROBLEM SOMETIMES FAVORABLE AND

SOMETIMES UNFAVORABLE,

IT IS QUITE ANOTHER FOR THE COURTS

TO BE BURDENED WITH THE RESPONSIBILITY FOR THE TOTAL SOLUTION

OF THOSE PROBLEMS.

AND FOR ALL THEIR POWER JUDGES ADMITTEDLY REMAIN

REMARKABLY UNACCOUNTABLE AND UNKNOWN,

TO MOST PEOPLE THEY

ARE AS THEY SHOULD BE FACELESS MEN AND WOMEN IN BLACK

ROBES.

INDEED ALL OF THOSE OF US IN THE JUSTICE BUSINESS

TEND TO SPEAK A LANGUAGE THAT OFTEN LEAVES THE AVERAGE

CITIZEN BEWILDERED.

SINCE UNDER OUR SYSTEM TRIAL JUDGES

-17-

INDEED NOT,

ARE RESPONSIBLE ONLY TO HIGHER JUDGES IT IS NOT SURPRISING

THAT MANY CITIZENS FEEL THAT SUPREME COURT JUSTICES ARE

BEHOLDEN TO NO ONE AT ALL,

YET WE ALL KNOW THAT JUDGES -

TO BE IMPARTIAL ARBITERS REALLY CAN HAVE NO RAPPORT WITH

THE PEOPLE AS A WHOLE -- IF THEY DO THEY CANNOT BE IMPARTIAL.

THE SYSTEM REQUIRES THAT TO BE SO.

SO UNDERSTANDABLY THE PUBLIC FEELING OF A

SUBSTANTIAL GROUP PERSISTS:

OUR AMERICAN JUDGES HAVE BEEN

FORCED BY POPULAR DEMAND AND DEFAULT OF GOVERNMENTAL POLICY-

MAKERS TO TAKE ON TOO BIG A BURDEN WE HAVE MADE THEM DO

WHAT THEY HAVE DONE AND AS A RESULT AT LEAST SOME OF

OUR PEOPLE NOW CLAMOR THAT JUDGES BE HELD MUCH MORE ACCOUNTABLE

FOR BOTH THEIR JUDGMENTS AND THEIR JUDICIAL REMEDIES. I

-18-

BELIEVE THAT THOSE WHO LOVE LAW AND CHERISH FAIRNESS AND

JUSTICE AS A COLLECTIVE ENTITY HAVE AN OBLIGATION TO

INSURE THAT ANY REVISED ACCOUNTABILITY NOT COME AT THE COST

OF COMPROMISING JUDICIAL INDEPENDENCE AND THAT THE JUDGES

MUST BE PROTECTED FROM ACCELERATING PUBLIC CLAMOR BY FORCING

OTHERS TO DO THE HARD JOBS THAT THEY SHOULD BE DOING BUT ARE

NOT NOW DOING.

WE WHO VALUE BOTH MAJORITY RULE AND

INDIVIDUAL FREEDOM LONG HAVE REALIZED THAT AN INDEPENDENT

JUDICIARY IS THE BULWARK OF OUR WAY OF LIFE,

TO SAFEGUARD

BOTH PRECIOUS VALUES PERHAPS IT IS PROPER FOR US NOW TO

RELY ON THE JUDGES THEMSELVES TO EXERCISE GREATER SELF-RESTRAINT.

EVEN THE STRIDENT FEW WOULD NOT ASK THE JUDGES TO UNDO ALL THE

-19-

RIGHTS THEY HAVE ADVANCED THROUGHOUT OUR HISTORY,

DONE SO MUCH TO CHANGE SOCIETY PERHAPS IT IS TIME THAT THE

JUDICIARY STATE AND FEDERAL CAN NOW HELP TO REFURBISH OUR

DEFAULTING LEGISLATIVE AND EXECUTIVE BRANCHES BY HENCEFORTH

DOING AS LITTLE AS POSSIBLE YET WE KNOW THAT JUDGES MUST

CONTINUE TO RENDER JUSTICE TO OUR PEOPLE IF NO OTHER GOVERN-

MENT AGENCY DOES SO,

JUDGES ARE HAVE BEEN AND MUST BE

THE LAST BULWARK OF A FREE AMERICAN AGAINST THOSE WHO WOULD

UNJUSTLY OPPRESS HIM OR HER AND THOSE WHO UNTHINKINGLY. BLAME

JUDGES FOR DOING JUSTICE AND CORRECTING OPPRESSIVE GOVERNMENT

SHOULD PLACE THE RESPONSIBILITY UPON THOSE WHO BY THEIR DEFAULT

HAVE FORCED THE JUDGES TO ACT,

IN CLOSING I ADVANCE MY UNSHAKEABLE CONCLUSION

-20-

HAVING

THAT THE COURTS OF THE SEVERAL STATES AND THE COURTS OF THIS

INDIVISIBLE NATION CANNOT BE THE PRIMARY AGENCY RELIED UPON

TO SOLVE ALL OUR SOCIAL PROBLEMS AND ILLS.

HERETOFORE HAVE DONE WHAT HAD TO BE DONE.

THE COURTS

OTHER INSTITUTIONS -

OTHER BRANCHES OF GOVERNMENT AND THOSE FORCES OUTSIDE OF

GOVERNMENT HAVE NOT LEAVING IT TO THE JUDGES TO DO,

AND

THOSE OTHERS MUST IMMEDIATELY BE REQUIRED TO ASSUME THEIR FAR

GREATER AND LEGITIMATE RESPONSIBILITY.

WE OF COURSE DO

NOT NEED OR WANT HERE IN OUR NOBLE REPUBLIC AN IMPERIAL

JUDICIARY BUT WE MUST RECOGNIZE THAT PERHAPS OUR PEOPLE

WILL DEMAND ONE IF OTHER AREAS OF GOVERNMENT CONTINUE TO

DEFAULT IN THEIR OBLIGATIONS,

THANK YOU.

-21-

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 212

VOLUME XVI

REMARKS BY:

CHESTERFIELD SMITH
LAWYER
TAMPA, FLORIDA

BEFORE:

PLACE:

INVESTITURE OF
THE HONORABLE
WILLIAM J. CASTAGNA
JUDGE, U. S, DISTRICT
COURT OF THE MIDDLE
DISTRICT OF FLORIDA

COURTROOM #1 THIRD FLOOR
U. S, COURTHOUSE AND
POST OFFICE BUILDING
TAMPA, FLORIDA

DATE:

FRIDAY, SEPTEMBER 14, 1979
3:00 P.M.

THE CHARACTER OF ANY COUNTRY'S JUDGES IS ONE TEST

OF ITS CIVILIZATION,

IN A COUNTRY AS SATURATED IN LAW

AS THE UNITED STATES THE CHOICE OF WHO IS TO SIT ON THE

BENCH ASSUMES PARTICULAR IMPORTANCE -- AND IS BOUND TO

AROUSE CONTENTION FROM TIME TO TIME.

PARTICULARLY IS

THAT SO OF THE FEDERAL COURTS,

IN THE FEDERAL SYSTEM THE CONSTITUTION GIVES THE

APPOINTING POWER TO THE PRESIDENT WITH THE CONSENT OF THE

SENATE,

BOTH THE PRESIDENT AND THE SENATE OF COURSE

WELCOME INDEED SEEK ASSISTANCE IN THEIR DISCHARGE OF THAT

PARTICULAR CONSTITUTIONAL DUTY WHENEVER THERE IS A FEDERAL

JUDICIAL VACANCY,

IF WE THE PEOPLE ARE THUS TO ASSIST -

IT IS PROPER THAT CONSIDERATION OF A PARTICULAR NOMINEE RAISE

-1-

IN EVERY INSTANCE BROAD QUESTIONS OF JUDGMENT ON WHAT SHOULD

BE THE QUALIFICATIONS FOR THE FEDERAL BENCH AND THAT SHOULD

BE SO AGAIN AND AGAIN.

ONE WAY TO APPROACH THE PROBLEM IS BY COMPARING IT TO

THE PRACTICE IN ENGLAND,

HIGH COURT JUDGES ARE PICKED BY

THE LORD CHANCELLOR ONLY FROM THE LAWYERS WHO ARGUE CASES IN

COURT.

THERE ARE ONLY ABOUT 2,500 PRACTICING BARRISTERS -

AND THUS THE LEADERS OF THE TRIAL BAR ARE ALL KNOWN TO EACH

OTHER AND TO THE JUDGES,

THE RESULT OF THE ENGLISH SYSTEM IS TO PRODUCE A

JUDICIARY OF HIGH PROFESSIONAL COMPETENCE,

YET SUBSTANTIAL

DOUBTS ABOUT THAT SYSTEM OF JUDICIAL SELECTION HAVE BEGUN TO

BE EXPRESSED IN ENGLAND -- A CONCERN THAT THE JUDGES COME

-2-

TOO MUCH FROM THE SAME MOLD THE SAME CLASS WITH THE SAME

RATHER NARROW OUTLOOK ON SOCIAL ISSUES.

I SUGGEST THAT PICKING FEDERAL JUDGES FROM SO THIN A

PROFESSIONAL SLICE WOULD BE TOTALLY UNACCEPTABLE IN THIS

ROBUST COUNTRY WHERE UNLIKE BRITAIN JUDGES CONTINUALLY

PASS ON THE MOST PROFOUND QUESTIONS,

THE DUTY TO ENFORCE

THE CONSTITUTION AFFECTS THE WHOLE ROLE OF AMERICAN JUDGES -

ESPECIALLY THOSE ON FEDERAL COURTS AND IT SUGGESTS TO ME

THAT THEY SHOULD COME FROM A DIVERSITY OF BACKGROUNDS.

JUDICIAL COMPETENCE HAS NOTHING TO DO WITH RACE SEX -

OR ETHNIC STRAIN BUT IN A PLURALISTIC SOCIETY SUCH AS OURS -

A DIVERSE JUDICIARY IS MUCH MORE LIKELY TO WIN THE FULL CON-

FIDENCE OF A DIVERSE CITIZENRY.

ON THE OTHER HAND -

-3-

JUDICIARY OVERWHELMINGLY COMPOSED OF ONE RACE ONE SOCIAL

CLASS AND ONE POLITICAL ORIENTATION WOULD UNDOUBTEDLY BE

SUSPECT BY AT LEAST THOSE NOT MEMBERS OF THAT RACE CLASS

AND POLITICAL ORIENTATION.

ONLY DIVERSITY OF BACKGROUNDS IS LIKELY TO PRODUCE

SOME DIVERSITY OF VIEWS AND PERSPECTIVES AND SUCH DIVERSITY

SHOULD BE WELCOMED ON THE FEDERAL BENCH PARTICULARLY WHEN

OUR COURTS ARE BEING CALLED UPON TO RESPOND TO DIFFICULT

ISSUES THAT AT BEST CAN BE DEALT WITH BY JUDICIAL ART AND

NOT SCIENCE,

LEARNED HAND ONE OF THE MORE REVERED FEDERAL JUDGES -

MADE A MOST RINGING STATEMENT OF THE LARGE VIEW THAT A JUDGE

OUGHT TO BRING TO INTERPRETING THE LAW.

JUDGE HAND SAID

-4-

"XXXX IN SUCH MATTERS EVERYTHING TURNS UPON THE SPIRIT

IN WHICH HE APPROACHES THE QUESTIONS BEFORE HIM,

THE

WORDS HE MUST CONSTRUE ARE EMPTY VESSELS INTO WHICH HE CAN

POUR NEARLY ANYTHING HE WILL.

MEN DO NOT GATHER FIGS OFF

THISTLES NOR SUPPLE INSTITUTIONS FROM JUDGES WHOSE OUTLOOK

IS LIMITED BY PARISH OR CLASS."

THAT GLORIOUS STATEMENT VISIONARY EVEN AS TO

APPELLATE COURT APPOINTMENTS HAS TO BE READ AGAINST OTHER

REALITIES SO FAR AS TRIAL COURTS ARE CONCERNED.

TODAY -

WITH EVER BURGEONING CASE LOADS FEDERAL TRIAL JUDGES SIMPLY

MUST HAVE THE TECHNICAL TRAINING THE LEGAL INTEREST AND

EXPERIENCE RAPIDLY TO GET THROUGH ENORMOUS VOLUMES OF OFTEN

HIGHLY COMPLICATED WORK.

-5-

FEDERAL TRIAL JUDGES MUST FOR EXAMPLE GRAPPLE WITH

THE INTRICACIES OF THE INTERNAL REVENUE CODE AND THE SHADOWY

DIVIDING-LINES OF THE ANTITRUST LAWS AND PATENTS AND

SECURITIES AND THE VARIOUS ADMINISTRATIVE STATUTES.

THEY

MUST ENFORCE THE CRIMINAL LAW WITH ALL ITS RECENT ENCRUSTA-

TION OF CONSTITUTIONAL CONSIDERATIONS.

JUDGE LEARNED HAND

NOTWITHSTANDING WE CERTAINLY NOW KNOW THAT THE LIFE OF A

FEDERAL TRIAL JUDGE DOES NOT CONSIST OF THINKING IN THE ABSTRACT

ABOUT GREAT PHILOSOPHICAL ISSUE

WORK AND WORK VERY HARD,

A FEDERAL JUDGE MUST

INDEED A FEDERAL JUDGE'S

REPUTATION TODAY RESTS IN LARGE PART ON HIS OR HER ABILITY

TO DO TECHNICAL LEGAL WORK TO ANALYZE A RECORD OR TO DISSECT

A STATUTE TO MOVE HER OR HIS DOCKET EXPEDITIOUSLY BUT FAIRLY,

-6-

THE IDEAL FOR WHICH JUDICIAL APPOINTMENTS OUGHT IN

THEORY TO STRIVE THEN IS A COMBINATION OF DILIGENCE -

CRAFTSMANSHIP WISDOM PHILOSOPHICAL VISION PERSEVERANCE -

AND THE EXPERIENCE OF AMERICAN LIFE THAT BRINGS FULL SOCIAL

UNDERSTANDING,

AS ONE WHO HAS BEEN HIS FRIEND FOR MORE THAN

THIRTY YEARS I AM SUPREMELY CONFIDENT THAT JUDGE WILLIAM

CASTAGNA POSSESSES ABUNDANTLY EACH OF THOSE QUALIFICATIONS.

BY EDUCATION BY EXPERIENCE BY APTITUDE BY

DEMONSTRATED CHARACTER BY THE VERY NATURE OF THE MAN -

WILLIAM CASTAGNA APPEARS TO ME TO POSSESS IN A UNIQUE WAY

THE POTENTIAL TO SERVE THIS COURT IN SUCH A WAY THAT HE WILL

IN TIME BE RECORDED AS A PEER OF THE GREAT JUDGES WHO

OVER THE YEARS HAVE GRACED THIS BENCH.

AS A MEMBER OF THE

-7-

BAR OF THIS COURT WHO HONORS JUSTICE AND WHO CHERISHES THE

FRIENDSHIP OF CAROLYN AND BILL CASTAGNA I AM PERSONALLY

PLEASED TO BE A PARTICIPANT IN THIS INVESTITURE,

-8-

REMARKS BY:

BEFORE:

PLACE:

CHESTERFIELD SMITH
LAWYER
TAMPA, FLORIDA

INVESTITURE OF
THE HONORABLE
WILLIAM J. CASTAGNA
JUDGE, U. S. DISTRICT
COURT OF THE MIDDLE
DISTRICT OF FLORIDA

COURTROOM # THIRD FLOOR
U. S. COURTHOUSE AND
POST OFFICE BUILDING
TAMPA, FLORIDA
( .' I H / ^-.C ,.v-' ,.. *. *,

FRIDAY, SEPTEMBER 14, 1979

DATE:

THE CHARACTER OF ANY COUNTRY'S JUDGES IS ONE TEST

OF ITS CIVILIZATION.

IN A COUNTRY AS SATURATED IN LAW

AS THE UNITED STATES THE CHOICE OF WHO IS TO SIT ON THE

BENCH ASSUMES PARTICULAR IMPORTANCE -- AND IS BOUND TO

AROUSE CONTENTION FROM TIME TO TIME.

PARTICULARLY IS

THAT SO OF THE FEDERAL COURTS.

IN THE FEDERAL SYSTEM THE CONSTITUTION GIVES THE

APPOINTING POWER TO THE PRESIDENT WITH THE CONSENT OF THE

SENATE.

BOTH THE PRESIDENT AND THE SENATE OF COURSE

WELCOME INDEED SEEK ASSISTANCE IN THEIR DISCHARGE OF THAT

PARTICULAR CONSTITUTIONAL DUTY WHENEVER THERE IS A FEDERAL

JUDICIAL VACANCY.

IF WE THE PEOPLE ARE THUS TO ASSIST -

IT IS PROPER THAT CONSIDERATION OF A PARTICULAR NOMINEE RAISE

-1-

IN EVERY INSTANCE BROAD QUESTIONS OF JUDGMENT ON WHAT SHOULD

BE THE QUALIFICATIONS FOR THE FEDERAL BENCH AND THAT SHOULD

BE SO AGAIN AND AGAIN,

ONE WAY TO APPROACH THE PROBLEM IS BY COMPARING IT TO

THE PRACTICE IN ENGLAND,

HIGH COURT JUDGES ARE PICKED BY

THE LORD CHANCELLOR ONLY FROM THE LAWYERS WHO ARGUE CASES IN

COURT.

THERE ARE ONLY ABOUT 2,500 PRACTICING BARRISTERS -

AND THUS THE LEADERS OF THE TRIAL BAR ARE ALL KNOWN TO EACH

OTHER AND TO THE JUDGES,

THE RESULT OF THE ENGLISH SYSTEM IS TO PRODUCE.A

JUDICIARY OF HIGH PROFESSIONAL COMPETENCE.

YET SUBSTANTIAL

DOUBTS ABOUT THAT SYSTEM OF JUDICIAL SELECTION HAVE BEGUN TO

BE EXPRESSED IN ENGLAND -- A CONCERN THAT THE JUDGES COME

-2-

TOO MUCH FROM THE SAME MOLD THE SAME CLASS WITH THE SAME

RATHER NARROW OUTLOOK ON SOCIAL ISSUES.

I SUGGEST THAT PICKING FEDERAL JUDGES FROM SO THIN A

PROFESSIONAL SLICE WOULD BE TOTALLY UNACCEPTABLE IN THIS

ROBUST COUNTRY WHERE UNLIKE BRITAIN JUDGES CONTINUALLY

PASS ON THE MOST PROFOUND QUESTIONS.

THE DUTY TO ENFORCE

THE CONSTITUTION AFFECTS THE WHOLE ROLE OF AMERICAN JUDGES -

ESPECIALLY THOSE ON FEDERAL COURTS AND IT SUGGESTS TO ME

THAT THEY SHOULD COME FROM A DIVERSITY OF BACKGROUNDS,

JUDICIAL COMPETENCE HAS NOTHING TO DO WITH RACE SEX -

OR ETHNIC STRAIN BUT IN A PLURALISTIC SOCIETY SUCH AS OURS -

A DIVERSE JUDICIARY IS MUCH MORE LIKELY TO WIN THE FULL CON-

FIDENCE OF A DIVERSE CITIZENRY.

ON THE OTHER HAND -

-3-

JUDICIARY OVERWHELMINGLY COMPOSED OF ONE RACE ONE SOCIAL

CLASS AND ONE POLITICAL ORIENTATION WOULD UNDOUBTEDLY BE

SUSPECT BY AT LEAST THOSE NOT MEMBERS OF THAT RACE CLASS

AND POLITICAL ORIENTATION.

ONLY DIVERSITY OF BACKGROUNDS IS LIKELY TO PRODUCE

SOME DIVERSITY OF VIEWS AND PERSPECTIVES AND SUCH DIVERSITY

SHOULD BE WELCOMED ON THE FEDERAL BENCH PARTICULARLY WHEN

OUR COURTS ARE BEING CALLED UPON TO RESPOND TO DIFFICULT

ISSUES THAT AT BEST CAN BE DEALT WITH BY JUDICIAL ART AND

NOT SCIENCE.

LEARNED HAND ONE OF THE MORE REVERED FEDERAL JUDGES -

MADE A MOST RINGING STATEMENT OF THE LARGE VIEW THAT A JUDGE

OUGHT TO BRING TO INTERPRETING THE LAW.

JUDGE HAND SAID

-4-

"XXXX IN SUCH MATTERS EVERYTHING TURNS UPON THE SPIRIT

IN WHICH HE APPROACHES THE QUESTIONS BEFORE HIM.

THE

WORDS HE MUST CONSTRUE ARE EMPTY VESSELS INTO WHICH HE CAN

POUR NEARLY ANYTHING HE WILL.

MEN DO NOT GATHER FIGS OFF

THISTLES NOR SUPPLE INSTITUTIONS FROM JUDGES WHOSE OUTLOOK

IS LIMITED BY PARISH OR CLASS,"

THAT GLORIOUS STATEMENT VISIONARY EVEN AS TO

APPELLATE COURT APPOINTMENTS HAS TO BE READ AGAINST OTHER

REALITIES SO FAR AS TRIAL COURTS ARE CONCERNED.

TODAY -

WITH EVER.BURGEONING CASE LOADS FEDERAL TRIAL JUDGES SIMPLY

MUST HAVE THE TECHNICAL TRAINING THE LEGAL INTEREST AND

EXPERIENCE RAPIDLY TO GET THROUGH ENORMOUS VOLUMES OF OFTEN

HIGHLY COMPLICATED WORK.

-5-

FEDERAL TRIAL JUDGES MUST FOR EXAMPLE GRAPPLE WITH

THE INTRICACIES OF THE INTERNAL REVENUE CODE AND THE SHADOWY

DIVIDING-LINES OF THE ANTITRUST LAWS AND PATENTS AND

SECURITIES AND THE VARIOUS ADMINISTRATIVE STATUTES.

THEY

MUST ENFORCE THE CRIMINAL LAW WITH ALL ITS RECENT ENCRUSTA-

TION OF CONSTITUTIONAL CONSIDERATIONS.

JUDGE LEARNED HAND

NOTWITHSTANDING WE CERTAINLY NOW KNOW THAT THE LIFE OF A

FEDERAL TRIAL JUDGE DOES NOT CONSIST OF THINKING IN THE ABSTRACT

ABOUT GREAT PHILOSOPHICAL ISSUE

WORK AND WORK VERY HARD.

A FEDERAL JUDGE MUST

INDEED A FEDERAL JUDGE'S

REPUTATION TODAY RESTS IN LARGE PART ON HIS OR HER ABILITY

TO DO TECHNICAL LEGAL WORK TO ANALYZE A RECORD OR TO DISSECT

A STATUTE TO MOVE HER OR HIS DOCKET EXPEDITIOUSLY BUT FAIRLY.

-6-

THE IDEAL FOR WHICH JUDICIAL APPOINTMENTS OUGHT IN

THEORY TO STRIVE THEN IS A COMBINATION OF DILIGENCE -

CRAFTSMANSHIP WISDOM PHILOSOPHICAL VISION PERSEVERANCE -

AND THE EXPERIENCE OF AMERICAN LIFE THAT BRINGS FULL SOCIAL

UNDERSTANDING,

AS ONE WHO HAS BEEN HIS FRIEND FOR MORE THAN

THIRTY YEARS I AM SUPREMELY CONFIDENT THAT JUDGE WILLIAM

CASTAGNA POSSESSES ABUNDANTLY EACH OF THOSE QUALIFICATIONS.

BY EDUCATION BY EXPERIENCE BY APTITUDE BY

DEMONSTRATED CHARACTER BY THE VERY NATURE OF THE MAN -

WILLIAM CASTAGNA APPEARS TO ME TO POSSESS IN A UNIQUE WAY

THE POTENTIAL TO SERVE THIS COURT IN SUCH A WAY THAT HE WILL

IN TIME BE RECORDED AS A PEER OF THE GREAT JUDGES WHO

OVER THE YEARS HAVE GRACED THIS BENCH,

AS A MEMBER OF THE

-7-

{ .

BAR OF THIS COURT WHO HONORS JUSTICE AND WHO CHERISHES THE

FRIENDSHIP OF CAROLYN AND BILL CASTAGNA I AM PERSONALLY

PLEASED TO BE A PARTICIPANT IN THIS INVESTITURE,

-8-

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 213

VOLUME XVI

'1.

MORRISON LECTURE BY: CHESTERFIELD SMITH
LAWYER
TAMPA, FLORIDA

BEFORE: STATE BAR OF CALIFORNIA
BONAVENTURE HOTEL
LOS ANGELES, CALIFORNIA
MONDAY, SEPTEMBER 17, 1979
12:00 NOON

TITLE: THE OLD LAWYER SAID: "I
LOOK OUT FOR MY PAYING
CLIENTS" -- THE YOUNG LAWYER
RESPONDED: "BUT GOOD LAWYERS
MUST ALSO DO SOME FREE
PUBLIC SERVICE."

THIRTY MINUTES

TIME:

IS THERE AN ETHICAL RESPONSIBILITY ON A LAWYER

FOR FREE PUBLIC SERVICE?

DOES A GOOD LAWYER HAVE AN

OBLIGATION TO GIVE SOME PORTION OF PROFESSIONAL TIME FOR

FREE PUBLIC SERVICE?

IS A GOOD LAWYER REQUIRED TO RENDER

FREE PROFESSIONAL SERVICE WITH THE SAME PROFESSIONAL

DEDICATION AS IS OWED TO A LAWYER'S PAYING CLIENTS?

IS IT TIME FOR AN EVOLUTIONARY PROGRESS IN LAWYER

ETHICS BY NOW IMPOSING PEER PRESSURE ON THOSE WHO

UNREASONABLY IGNORE THAT LOFTY OBLIGATION OF LAWYERS?

SHOULD THOSE LAWYERS WHO AFTER NOTICE AND HEARING

REPEATEDLY REFUSE TO ASSUME THEIR PART OF THAT PROFESSIONAL

OBLIGATION HENCEFORTH BE CHASTISED BY THE ORGANIZED BAR?

I WOULD ANSWER EACH QUESTION WITH A QUALIFIED "YES",

MANY INDIVIDUAL LAWYERS DO NOT DISCHARGE

IN ANY SUBSTANTIAL WAY WHAT I PERSONALLY PERCEIVE

TO BE AN EXISTING PROFESSIONAL OBLIGATION TO IMPROVE THE LAW -

TO ENHANCE THE ADMINISTRATION OF JUSTICE AND TO MAKE BETTER

THE SERVICES OF THE LEGAL PROFESSION,

THE GRANDIOSE LEGEND

OFTEN VOICED AT BAR MEETINGS THAT LOCAL LAWYERS AS NEEDED

WILL ROLL UP THEIR SLEEVES AND GIVE UNSELFISHLY OF THEIR

TIME TO DO THAT WHICH LAWYERS OUGHT TO DO

IS A MERE FANTASY,

UNFORTUNATELY -

WHILE MORE YOUNG LAWYERS

BY THEIR GOOD DEEDS ADD LUSTER TO THE LAW THAN DO OLDER LAWYERS -

LAMENTABLY AMONG THOSE LAWYERS LEAST CONCERNED WITH JUSTICE AS

A MAJESTIC PART OF LIFE AND LEAST CONCERNED WITH THE PRACTICE

OF LAW AS A GRAND AND EXALTED CALLING ARE MORE THAN A FEW OF THOSE

-2-

WHO IN THE PAST SEVERAL YEARS HAVE JOINED THE BAR,

ESPECIALLY DOES THAT SEEM SO TO ME AMONG THOSE WHO PRESENTLY

ARE BECOMING LAWYERS.

IF INDEED THAT IS A TREND IT

IS ONE WHICH MUST BE REVERSED IF THE LEGAL PROFESSION IS

EVER TO RECEIVE WIDER PUBLIC SUPPORT.

A GOOD LAWYER AS A MEMBER OF A LEARNED PROFESSION -

QUITE CLEARLY SHOULD CULTIVATE KNOWLEDGE OF THE LAW BEYOND

ITS USE FOR PAYING CLIENTS AND A GOOD LAWYER SHOULD EMPLOY

THAT ADDED KNOWLEDGE IN THE BETTERMENT OF THE LAW, INDUBITABLY

THAT TRUISM LONG HAS BEEN A PART OF LAWYERING. A GOOD LAWYER

ALMOST BY DEFINITION MUST BE CONTINUALLY MINDFUL OF CURRENT

DEFICIENCIES IN THE ADMINISTRATION OF JUSTICE AND

WITHOUT PERSONAL REWARD CONTINUALLY WORK FOR BETTER COURTS -

MORE QUALIFIED JUDGES AND FAIRER AND MORE EXPEDITIOUS

-3-

A GOOD LAWYER MUST TOO BE COGNIZANT

THAT THERE ARE MANY PEOPLE WHO CANNOT AFFORD

ADEQUATE LEGAL ASSISTANCE AND THE GOOD

LAWYER SHOULD NOW AS IN THE PAST DEVOTE TIME AND INFLUENCE

IN THEIR BEHALF,

BUT TODAY A GOOD LAWYER MUST BE EQUALLY

AWARE THAT THERE ARE MANY OTHER AREAS WHICH CRY OUT IN EQUALLY

LOUD VOICES FOR THE LAWYER'S DISTINCTIVE TALENTS PLACES

WHERE SOCIETAL LEGAL REQUIREMENTS PRESENTLY ARE NOT FULLY MET.

THE FACT THAT SOME GOOD LAWYERS HAVE PROVIDED

LEGAL SERVICES TO THE POOR AT NO COMPENSATION AS IN LEGAL

AID OR FOR REDUCED COMPENSATION AS IN GOVERNMENT SPONSORED

LEGAL SERVICE PROGRAMS CANNOT VALIDLY BE LONGER USED BY

THE MASS OF LAWYERS NOT SO PARTICIPATING AS A SHIELD AGAINST

THE RENDERING OF FREE PUBLIC SERVICE THEMSELVES.

THE

-4-

LEGAL PROCEDURE.

INDIGENT CLIENT WHILE SIGNIFICANT IS ONLY A PART OF

THE PROBLEM AND A PART IN WHICH THE GOVERNMENT QUITE

PROPERLY HAS ASSUMED A FAR GREATER RESPONSIBILITY THAN THE

LEGAL PROFESSION.

WORKING FREE PART-TIME IS NOT A GOOD

WAY TO ACHIEVE LASTING ECONOMIC SUCCESS EVEN IF SUCH FREE

WORK BE LABELED "PUBLIC SERVICE".

ADMITTEDLY MANY

MAGNIFICENT LAWYERS OVER THE YEARS WILLINGLY HAVE

RENDERED TO THE PUBLIC SUBSTANTIAL SERVICE WITHOUT RECEIVING

PECUNIARY COMPENSATION,

HAVE.

BUT NOT ALL OR EVEN MOST -

THUS IT SEEMS TO ME SUITABLE PROPER SEEMLY -

AND TIMELY THAT THE ORGANIZED LEGAL PROFESSION FORMALLY

RECOGNIZE THAT EACH LAWYER HAS AN OBLIGATION FOR SOME

FREE PUBLIC SERVICE WHICH IF UNREASONABLY IGNORED WARRANTS

-5-

PROFESSIONAL SANCTIONS.

HERETOFORE IT HAS PERHAPS BEEN PROFESSIONALLY

ACCEPTABLE FOR SOME GOOD LAWYERS TO SERVE ONLY PAYING CLIENTS,

IF SO A NEW PROFESSIONAL STANDARD IS ABORNING.

THE

SUBSTANTIAL RECOGNITION WHICH HAS BEEN AFFORDED IN YEARS

PAST TO THOSE LAWYERS WHO HAVE GROUND AWAY AT THEIR CLIENTS'

DEMANDS DAY AFTER DAY AND YEAR AFTER YEAR TENDING TO THE

STORE NEVER LEAVING THE OFFICE MINDING WHAT HAS BEEN

TRADITIONALLY STYLED "THEIR OWN BUSINESS" IS UNDERGOING

SUBSTANTIAL CHANGE.

NO LONGER CAN THE OLD LAWYER OR

THE YOUNG LOOK OUT ONLY FOR PAYING CLIENTS,

NO LONGER

CAN THE LEGAL PROFESSION MERIT PUBLIC APPROBATION UNDER A

RANDOM AND HAPHAZARD STANDARD THAT LETS SOME LAWYERS DO GOOD

AND SOME DO NOT SQ GOOD,

-6-

BECAUSE SOME LAWYERS STILL MAJESTICALLY DO WHAT GOOD LAWYERS OF A

DIFFERENT DAY AND TIME DID AS A DISCHARGE OF THEIR THEN MORE

RESTRICTED PROFESSIONAL ENGAGEMENTS CANNOT EXONERATE OTHER

LAWYERS FROM FREE PUBLIC SERVICE,

LAWYERS WHO WORK WITH

NO COMPENSATION OR WITH SUBSTANTIALLY REDUCED COMPENSATION

TO MITIGATE THE PROBLEMS OF THE INDIGENT IN OUR JUSTICE SYSTEM

ARE AND ALWAYS WILL BE RENDERING VALUABLE PUBLIC SERVICE -

BUT THE ENTIRE PROFESSION NEVERTHELESS STILL HAS A DUTY TO DO

WITHOUT PECUNIARY BENEFIT THOSE OTHER EVEN MORE ESSENTIAL SOCIETAL

ACTIVITIES BEST DONE BY LAWYERS. THE PRIME ONUS OF LAWYERS

NOW MUST BE TO MAKE SOCIETY BETTER BY UTILIZING THE LAWYERS'

SPECIAL AND UNIQUE SKILLS IN THE PUBLIC INTEREST, THROUGHOUT

HISTORY JUSTICE ALTHOUGH ALWAYS ELUSIVE HAS BEEN THE

GRANDEST ASPIRATION OF HUMANKIND.

LAWYERS THE PRIME

ENVOY OF THE JUSTICE SYSTEM TO THE PEOPLE IT SERVES HAVE IN

MY MIND ALWAYS HAD AN EXALTED AND UNIQUE STATUS WHICH DEMANDED MORE

FROM THEM THAN OTHERS.

THUS UNDERSTANDABLY THE CIRCUMSTANCES OF

SUCH FREE PUBLIC SERVICE ACTIVITY BY A LAWYER IN THE COMPLEXITY

OF TODAY'S LEGAL SOCIETY NEVER AGAIN CAN BE SO EXCLUSIONARY AS

SIMPLY LEGAL AID FOR THE POOR,

THE PARAMETERS OF LAWYER FREE PUBLIC

SERVICE HENCEFORTH MUST BE AS BROAD AND FLEXIBLE AS THE

-8-

MINDS OF THOSE WHO WILL DISCHARGE THAT RESPONSIBILITY,

THAT OBLIGATION EXTENDS TO PROVIDING ESSENTIAL LEGAL NEEDS

TO ALL AMERICANS RICH OR POOR YOUNG OR OLD MALE OR

FEMALE BLACK OR WHITE HAPPY OR SAD GRACIOUS OR

SURLY INDIVIDUALS OR GROUPS ALL PEOPLE WHOEVER AND FOR

WHATEVER REASONS.

THAT IS THE LAWYER'S OBLIGATION AND

IF IT IS TO BE MET EACH LAWYER MUST HELP.

A LAWYER'S CONTRIBUTION TO THE PUBLIC INTEREST THROUGH

FREE PUBLIC SERVICE CAN NEVER BE JUDGED BY WHAT WAS ACHIEVED -

OR BY THE MONETARY VALUE OF THE SERVICE CONTRIBUTED.

IN ALL EVENTS THAT PRICELESS AND UNIQUE MEASURE OF

PROFESSIONAL DEVOTION CONTRIBUTED TIME MUST BE A PRIME

FACTOR IN THE DETERMINATION OF WHETHER A LAWYER FULLY HAS

DISCHARGED THOSE OBLIGATIONS OF FREE PUBLIC SERVICE.

EACH LAWYER MUST PERFORM HER OR HIS OWN DUTY NO ONE ELSE

CAN,

FINANCIAL CONTRIBUTIONS NO MATTER HOW EXTENSIVE -

CANNOT DISCHARGE THE INDIVIDUAL LAWYER'S PROFESSIONAL OBLIGATION

FOR FREE PUBLIC SERVICE,

THE LEGAL PROFESSION IS

NOT AN ELITIST ONE IN WHICH THE ECONOMICALLY SUCCESSFUL

CAN BUY AMNESTY FOR NOT DOING WHAT ALL LAWYERS ARE

OBLIGATED TO DO,

INDEED IF THE LAW TRULY IS A VERY

SPECIAL LEARNED PROFESSION THOSE OBLIGATIONS MUST

BE NON-TRANSFERABLE,

A MAJOR DIFFICULTY IN LAWYERS CONTRIBUTING TO THE

PUBLIC FREE PROFESSIONAL SERVICE IS IN STRIKING THE PROPER

-10-

BALANCE BETWEEN THAT PROFESSIONAL TIME DEVOTED FOR PUBLIC

SERVICE AND THAT PROFESSIONAL TIME NEEDED FOR THE ECONOMIC

NECESSITIES WHICH FACE ALL PROFESSIONAL PEOPLE.

EVEN

THOSE MANY LAWYERS WHO LONG HAVE ACKNOWLEDGED SOME RESPONSI-

BILITY FOR FREE PUBLIC SERVICE BOTH INDIVIDUALLY AND

COLLECTIVELY HAVE NO GUIDANCE AS TO THE TYPE OR EXTENT OF

ACTIVITIES THAT WILL DISCHARGE THAT OBLIGATION,

THAT LACK OF AFFIRMATIVE DEMARCATION HAS TO BE ONE

REASON WHY MANY OF OUR MORE ECONOMICALLY SUCCESSFUL

LAWYERS HAVE DONE LITTLE FREE PUBLIC SERVICE -

LEAVING PRIMARILY THE FEW TO DISCHARGE THE LEGAL

PROFESSION'S ENTIRE OBLIGATION.

-11

THE COLLECTIVE RESPONSIBILITY OF LAWYERS MUST BE

TRANSLATED INTO A DEFINED PROFESSIONAL DUTY THAT

EACH LAWYER INDIVIDUALLY RENDER A SHARE OF FREE PUBLIC

SERVICE.

IF THAT ETHICAL DEMAND IS PLAINLY

ENUNCIATED WITHOUT EQUIVOCATION OR AMBIVALENCE -

THE DECISIONAL PROCESS NOW UNIVERSALLY UTILIZED BY THE

ORGANIZED BAR IN ESTABLISHING ETHICAL BOUNDARIES WILL IN

TIME EVOLVE DEFINITIVE GUIDELINES FOR ITS APPLICATION,

THROUGH TRIAL AND ERROR THROUGH EXPERIMENTATION LAWYERS

ULTIMATELY CAN INCORPORATE INTO DECISIONS INTERPRETING A REVISED

CODE OF PROFESSIONAL RESPONSIBILITY THE WHO HOW WHAT AND

WHEN OF THE FREE PUBLIC SERVICE THAT SOCIETY SHOULD RECEIVE

IN EXCHANGE FOR ITS GRANT OF THE EXCLUSIVE PRIVILEGE TO

PRACTICE LAW,

-12-

THERE ARE OF COURSE INHERENT DIFFICULTIES IN AN

ADJUDICATION OF PROFESSIONAL PERFORMANCE INVOLVING SUCH

SUBJECTIVE CONSIDERATIONS AS WORK HABITS JOB REQUIREMENTS -

ORGANIZATION AND SELF DISCIPLINE INTELLIGENCE EMPLOYMENT

RESTRAINTS PUBLIC RESPONSIBILITIES INTEGRITY PERSONAL

CHARACTER AND PROFESSIONAL KNOW-HOW.

HOWEVER PERPLEXITY

IN ENFORCEMENT HAS NEVER PREVENTED THE ORGANIZED BAR FROM

ADOPTING EVER STRICTER STANDARDS,

CERTAINLY LAWYERS HAVE INDIVIDUAL CHARACTERISTICS

AND PRACTICE DEMANDS WHICH WILL PREVENT THEM FROM BEING

-13-

"EQUAL" IN ALL PROFESSIONAL CONTRIBUTIONS,

NECESSITY UNDER GENERAL ASPIRATIONAL GOALS TO BE OUTLINED BY

THE ORGANIZED BAR MUST BE JUDGED ON THEIR SUBSCRIPTIONS TO

FREE PUBLIC SERVICE WITH A FULL RECOGNITION OF THEIR DIFFERING

CIRCUMSTANCES.

IN SOME CASES THOSE FREE PUBLIC SERVICE

ACTIVITIES MIGHT EMBRACE EXTENSIVE WORK WITHIN THE ORGANIZED

BAR ITSELF SUCH AS DISCIPLINARY ACTIVITIES OR LAW REFORM,

IN OTHERS IT MIGHT MEAN WORKING WITH A PUBLIC INTEREST LAW

FIRM RENDERING LEGAL SERVICES TO THOSE WHO ARE UNABLE TO

OBTAIN THOSE SERVICES THROUGH THE NORMAL MEANS OF DELIVERY -

OR REPRESENTING CHARITABLE ORGANIZATIONS,

TO SOME LAWYERS -

PERHAPS FREE PUBLIC SERVICE MIGHT WELL INVOLVE

-14-

LAWYERS OF

MAINTAINING AND ENHANCING THE LEGAL COMPETENCE OF OTHER

LAWYERS WORKING TO IMPROVE THE AVAILABILITY AND DELIVERY

OF LEGAL SERVICES HELPING WITH CIVIL RIGHTS LAW OR POVERTY

LAW WORKING AS A DEFENDER OF THOSE CHARGED WITH CRIME WHO

ARE UNABLE TO SECURE COMPETENT COUNSEL OR REPRESENTING

DIFFUSED INTERESTS IN ADVERSARY PROCEEDINGS INVOLVING THE

PUBLIC AT LARGE.

ALMOST CERTAINLY ETHICAL RECOGNITION

OF PUBLIC SERVICE MUST ENCOMPASS AT LEAST A MODICUM OF

ACTIVITY DESIGNED TO IMPROVE THROUGH CONSTITUTIONAL OR

STATUTORY REVISION THE JUSTICE SYSTEM AS A UNIT,

MANY

-15-

INTERESTS IN FIELDS SUCH AS THE ENVIRONMENT WELFARE -

CONSUMER PROTECTION CIVIL LIBERTIES PRIVACY AND THE

POOR EITHER ARE NOT REPRESENTED OR ARE UNDER-REPRESENTED

BEFORE LEGISLATURES EXECUTIVE AGENCIES AND COURTS.

THE BEST WAY TO MEASURE THE INDIVIDUAL FREE PUBLIC

SERVICE REQUIRED OF A LAWYER WILL VARY FROM AREA TO AREA AND

PERHAPS FROM BRANCH OF THE LAW TO BRANCH OF THE LAW.

ADDITIONALLY THERE WILL BE MULTIPLE AREAS OF FREE PUBLIC

SERVICE OTHER THAN THOSE FEW THAT I HAVE SUGGESTED WHICH

AS ALTERNATIVES OR SUPPLEMENTS ARE BETTER SUITED TO BOTH

SOCIETY AND THE LEGAL PROFESSION.

ONLY A LAWYERS' PEER

-16-

GROUP SHOULD DETERMINE WHETHER VARIOUS ACTIVITIES PERFORMED

ON A RECURRING AND SUBSTANTIAL BASIS ARE AMONG THOSE THINGS

WHICH A PARTICULAR LAWYER FREELY SHOULD CONTRIBUTE TO THE

PUBLIC WEAL.

IN ALL SUCH DETERMINATIONS DIVERSITY AND

EXPERIMENTATION MUST BE FOSTERED AND SUPPORTED,

SINGLE APPROACH.

THERE IS NO

THROUGH VARIETY THROUGH

TRIAL AND ERROR THROUGH EVOLUTION THE ORGANIZED BAR BEST

CAN GAIN A PROPER UNDERSTANDING OF THE WAYS IN WHICH INDIVIDUAL

LAWYERS MOST MEANINGFULLY MAY RENDER GENEROUS PUBLIC SERVICE.

IT IS OF COURSE CLEAR BY NOW THAT I

PERSONALLY BELIEVE THAT THE LEGAL PROFESSION OWES TO SOCIETY

A GREATER RETURN FOR ITS GRANT OF A PERSONAL

SERVICE MONOPOLY THAN HAS EVER BEEN MADE.

THERE

-17-

ARE MANY DEDICATED AND RESPONSIBLE 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 SEEK PROFESSIONAL RESTRUCTURING

ARE AGITATORS CREATING MORE PROBLEMS THAN THEY SOLVE,

THEY SOMETIMES ASSERT THAT ALL WHO DO NOT CHERISH THE

LEGAL PROFESSION AS IT HAS BEEN SHOULD DO SOMETHING ELSE

FOR A LIVELIHOOD.

I TOTALLY REJECT THAT CONCEPT.

SHOULD ACCEPT THE LEGAL PROFESSION AS IT IS.

NO LAWYER

LAWYERS

-18-

MUST ASPIRE FOR THE ELIMINATION OF IMPERFECTIONS IN THEIR

CHOSEN PROFESSION AND IN THE LAW ITSELF,

THOSE LAWYERS

WHO CANNOT OVERLOOK THE SOCIAL ILLS OF THE JUSTICE SYSTEM -

THOSE LAWYERS WHO CANNOT OVERLOOK THE LEGAL PROFESSION'S

DEFICIENCIES THOSE LAWYERS WHO CANNOT OVERLOOK ITS

FAILURE TO MAKE ADEQUATE LEGAL SERVICES AVAILABLE TO ALL -

THOSE LAWYERS WHO CANNOT OVERLOOK THE INABILITY OF LAW TO

RENDER JUSTICE AND FAIRNESS ALIKE TO RICH AND POOR THOSE

LAWYERS WHO REFUSE TO OVERLOOK THE WARTS EASILY FOUND IN

THE COURTS SEEM TO ME TO BE THE ONES WHO CHERISH THE

LEGAL PROFESSION AS A SUBLIME CALLING,

IT IS

THOSE LAWYERS WHO PLACIDLY ACCEPT THE INEQUITIES THE

-19-

PERVERSIONS THE INJUSTICES THE CORRUPTIONS THE INEFFICIENCIES -

AND THE UNFAIRNESSES IN THE LAW WHO SEEM TO ME NOT TO HONOR

THEIR CHOSEN CAREER.

SOCIETY LONG AGO MADE A DETERMINATION THAT A FIERCELY

INDEPENDENT AND UNSHACKLED LEGAL PROFESSION IS ESSENTIAL TO

OUR SYSTEM OF GOVERNMENT AND TO THE INDIVIDUAL RIGHTS OF ITS

CITIZENS,

IT PLACED LAWYERS IN A POSTURE TO BE BOTH FREE

AND INDEPENDENT BY ESTABLISHING A MONOPOLY FOR THOSE WHO

PRACTICE LAW.

IN GRANTING TO LAWYERS THAT PRIVILEGE -

THE NURTURING OF CERTAIN SKILLS UTILIZED EXTENSIVELY IN THE

PRACTICE OF LAW SUCH AS ADVOCACY COUNSELING NEGOTIATING

-20-

AND DRAFTING WERE CHILLED AND PERHAPS DENIED TO NON-LAWYER

MEMBERS OF SOCIETY.

THE GRANT OF MONOPOLISTIC PRIVILEGES

BY SOCIETY TO A LIMITED NUMBER OF PEOPLE TO RENDER SPECIALIZED

PROFESSIONAL SERVICES ALWAYS CREATES AN OBLIGATION

TO MAKE AVAILABLE TO SOCIETY THOSE SPECIAL SKILLS NURTURED

BY THAT MONOPOLY.

IF THAT OBLIGATION IS NOT MET THE

PUBLIC AS A WHOLE INEVITABLY WILL HAVE NO CHOICE BUT TO

PERMIT ENCROACHMENT BY OTHERS,

THE LEGAL PROFESSION CAN BEST PERFORM IF ITS

MORES CUSTOMS STANDARDS AND OFFICES ARE SELF-DETERMINED.

IF A LEGAL MONOPOLY IS A VIABLE SOCIETAL INSTITUTION LAWYERS

IN ORDER TO SUPPORT THAT MONOPOLY AND TO PRESERVE

-21-

SELF-REGULATION MUST FILL THOSE ESSENTIAL PUBLIC NEEDS

WHICH WILL NOT OTHERWISE BE MET UNLESS LAWYERS MEET THEM -

INCLUDING THE RENDERING OF THOSE DISTINCT SERVICES WHICH

THE MONOPOLY ITSELF MAKES LAWYERS PECULIARLY QUALIFIED

TO PERFORM.

SOME ETHICAL RESTRUCTURING SHOULD

OCCUR SOON OR THE MULTIPLE WAYS IN WHICH LAWYERS

PRESENTLY RENDER PROFESSIONAL SERVICES WILL PERHAPS BE CURTAILED.

LAWYERS' PATRONS THE POPULACE AS A WHOLE MAY ALREADY BE

NEAR A CONCLUSION THAT THEIR INTEREST WILL BE BEST SERVED IF

OTHER PROFESSIONALS OR PARA-PROFESSIONALS SHARE IN AT

LEAST SOME OF THE WORK WHICH TRADITIONALLY HAS BEEN PERFORMED

-22-

I CONCEDE THAT FURTHER EXAMINATION OF

ALL ALTERNATIVES IS WARRANTED BEFORE SUBSTANTIAL

REVISIONS OF THE ETHICAL CANONS OF THE LEGAL

PROFESSION SHOULD FORMALLY BE UNDERTAKEN BUT CLEARLY THE

TIME FOR RE-ANALYSIS AND RE-EXAMINATION BY THE ORGANIZED BAR

IS HERE.

WHILE LAWYERS DO OWE OTHER INDIVIDUAL LAWYERS

COURTESY AVOIDANCE OF SHARP PRACTICE AND

INTEGRITY IN THEIR DEALINGS LAWYERS OWE

INDIVIDUAL LAWYERS WHO ARE UNWORTHY ABSOLUTELY NOTHING.

THE ORGANIZED BAR IS NOT AN EXCLUSIVE CLUB AND ITS MEMBERS

CANNOT BE MUTUALLY PROTECTIVE,

THOSE WHO DO THEIR

-23-

ONLY BY LAWYERS,

PROFESSIONAL PART CANNOT LONGER PRESERVE THOSE WHO DO NOT,

THE ORGANIZED LEGAL PROFESSION IS NOT AND CANNOT BE MERELY A

TRADE GUILD IT MUST BE AN ORGANIZATION OF LEARNED PROFESSIONALS

BANDED TOGETHER MORE EFFECTIVELY TO SERVE THE PUBLIC AS A

WHOLE.

BUT THE INDIVIDUAL LAWYER DOES OWE A GREAT DEAL

TO THE BAR AS AN ENTITY,

EACH LAWYER SHOULD SO CONDUCT

HERSELF OR HIMSELF AS CONTINUALLY TO ENHANCE THE REGARD

IN WHICH THE LEGAL PROFESSION AS AN ENTITY IS HELD

BY OTHERS,

THAT OF COURSE PRESUPPOSES A PERSONAL

STANDARD OF CONDUCT OF IMPECCABLE RECTITUDE,

BUT IT GOES FURTHER IT INCLUDES THE AFFIRMATIVE DUTY OF

-24-

CLEANSING THE BAR OF ITS SHYSTERS ITS CROOKS ITS EMBEZZLERS -

ITS LIARS AND CHEATS ITS INCOMPETENTS ITS LAGGARDS -

AND FROM NOW ON THOSE WHO UNREASONABLY IGNORE THEIR

PROFESSIONAL OBLIGATIONS AS LAWYERS OF PURGING PROMPTLY

AND EXPEDITIOUSLY FROM ITS RANKS ALL OF THOSE LEGAL

PRACTITIONERS WHO DO NOT ADD GLORY TO THE LAW BY BEING

OF A HIGHER PROFESSIONAL CALIBER THAN ALL OF THOSE WHO

FOLLOW OTHER PROFESSIONS,

THOSE WHO DO NOT

DO AS LAWYERS WHAT THEY OUGHT TO DO HARM THOSE LAWYERS

WHO DO WHAT THEY OUGHT TO DO AND THEY SHOULD NOT BE

TOLERATED.

THE CURRENT EPOCH OF EXTRAORDINARILY RAPID

CHANGE IN ALMOST EVERY ASPECT OF LEGAL LIFE NOW DEMANDS

-25-

A SOLEMN RECOGNITION BY THE ORGANIZED BAR THAT EVERY LAWYER

WHO UNREASONABLY IGNORES THE PROFESSIONAL OBLIGATION FOR AT

LEAST SOME FREE PUBLIC SERVICE WARRANTS PROFESSIONAL SANCTIONS,

I REITERATE "UNREASONABLY IGNORES" BECAUSE

THAT DUTY OF GENEROUS PUBLIC SERVICE BY EACH LAWYER OF

NECESSITY MUST HAVE DIFFERING AND CHANGING DIMENSIONS

7.DIMENSIONS WHICH CAN ONLY BE DETERMINED ON A CASE-BY-CASE

BASIS BY THAT LAWYER'S PEER GROUP,

THE ETHICAL PROGRESSION BY THE ORGANIZED BAR WHICH

I HERE SUGGEST IS OBTAINABLE,

IN MY OWN TIME I HAVE

SEEN DISCIPLINARY MEASURES FOR PARTICULAR ETHICAL VIOLATIONS

EVOLVE FROM CLUCKING DISAPPROVAL TO DISBARMENT,

INITIALLY -

-26-

IN MY EXPERIENCES AS A BAR OFFICIAL I JOINED WITH OTHERS

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 SANCTIONS.

INDEED IT WAS RATIONALIZED THAT TO DO SO WOULD BE CONTRARY

TO THE SUPREME COURT ORDER CERTIFYING THAT LAWYER AS

COMPETENT, ALL OF THAT HAS CHANGED FOR ME AND FOR THE

ORGANIZED BAR. IN MOST.JURISDICTIONS REPEATED OR

GROSS NEGLIGENCE BY A LAWYER NOW WARRANTS THE

SEVEREST CENSURE,

NO LONGER DOES THE PROFESSION

ALLOW MARGINAL LAWYERS REPEATEDLY TO ACCEPT LEGAL

-27-

MATTERS WHICH THEY CANNOT COMPETENTLY AND PROFICIENTLY

HANDLE.

I BELIEVE THAT WHAT IS NOW NEEDED IS IN ESSENCE

A REQUIRED CONTRIBUTION OF FREE PUBLIC SERVICE BY EACH

LAWYER IN A DEFINITE PRESCRIBED AND RECURRING AMOUNT -

AS FIXED FROM TIME TO TIME BY THE LAWYERS' PEERS IN THE

NATURE OF TITHING PROFESSIONAL TIME BUT NOT TO EXCEED ONE-TENTH,

SUCH A COMMITMENT BY THE LEGAL PROFESSION WHILE SUBSTANTIAL -

INEVITABLY WILL RESULT IN DISTRIBUTING THE EVER-BURGEONING

BURDEN OF FREE PUBLIC LEGAL SERVICE MORE EQUITABLY AMONG ALL

MEMBERS OF THE PROFESSION.

THAT REQUIRED FREE PUBLIC

SERVICE CAN BE PROVIDED BY THE HIGHLY DIVERSIFIED LEGAL

-28-

PROFESSION IN THE MULTIPLE FORMS REFERRED TO ABOVE BUT

QUITE OBVIOUSLY THE OVERALL OBLIGATION MUST BE SHARED

BY EACH INDIVIDUAL LAWYER IF THE JOB IS TO BE WELL DONE.

MY THESIS THUS IS A SIMPLE ONE:

IF THE

LEGITIMATE ASPIRATIONS OF SOCIETY IN CREATING THE PROFESSION

OF LAWYER ARE TO BE REALIZED THE TITLE "LAWYER" MUST

DENOTE TO ALL PEOPLE INTEGRITY UNITY COURAGE -

SPECIALIZED COMPETENCE AND UNSELFISH INVOLVEMENT

IN ESSENTIAL PUBLIC SERVICE.

IT DOES NOT

NOW,

THE PUBLIC SHOULD KNOW THAT EACH LAWYER

IS INTERESTED IN MORE THAN MAKING MONEY IN MORE THAN

PERSONAL AGGRANDIZEMENT IN MORE THAN ACHIEVING PUBLIC

-29-

THEY SHOULD KNOW THAT THE LEAST OF LAWYERS

IS INTERESTED IN SERVING WELL THE PUBLIC GOOD IN FILLING

THE PARTIAL VOID IN SPECIAL SKILLS CREATED IN SOCIETY LONG

AGO WHEN THE LAWYER BY GOVERNMENTAL EDICT WAS GIVEN THE

MONOPOLY FOR LEGAL SERVICES.

THEY SHOULD KNOW THAT THE

BAR -AS A QUASI-PUBLIC INSTITUTION IS STALWART AND NOT

SUPINE THAT IT IS WILLING TO ELIMINATE FROM ITS RANKS

THOSE LAWYERS WHO DO NOT DO THEIR PART,

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 DEVELOPED BY USAGE TO REQUIRE EVER MORE OF THOSE

-30-

RECOGNITION,

PERSONS WHO WEAR THE LEGAL MANTLE -- AND SO THEY SHOULD,

LAWYERS ALWAYS SHOULD INDEED THEY MUST AS THEY TRADITIONALLY

HAVE LIVE NOBLY IN THE LAW,

THANK YOU.

-31-

LIST OF MORRISON LECTURERS

1930 Roscoe Pound United States
(Professor, lecturer and writer,
distinguished legal scholar)
1931 Hon. James Grafton Rogers United States
(Lawyer and educator; Assistant United States
Secretary of State, 1931-34)
1932 Henry M. Bates United States
(Professor of Law and Dean, University
of Michigan)
1933 Chester H. Rowell United States
(Editor and educator)
1934 Will Shafroth United States
(Lawyer; Secretary, National Conference
of Bar Examiners, 1931-40)
1935 Dr. Robert A. Milliken United States
(Scientist; Nobel prize winner in physics, 1923)
1936 George Wharton Pepper United States
(Lawyer, professor, United States Senator)
1937 Hon. Merrill E. Otis United States
(Judge, United States District Court;
Assistant to Solicitor General of the
United States)
1938 Col R. McGuire United States
(Lawyer and author)
1939 Hon. Henry Hague Davis Canada
(Justice of the Supreme Court of Canada)
1940 Lloyd Paul Stryker United States
(Distinguished New York lawyer)
1941 Hon. Walter P. Armstrong United States
(Lawyer; President, American Bar Association,
1941)
1942 )
1943 )
1944 ) No meetings held.
1945 )

1946 Hon. Joseph C. Hutcheson, Jr. United States
(Judge, United States Court of. Appeals)
1947 Hon. Charles E. Wyzanski, Jr. United States
(Judge, United States District Court)
1948 Dr. T. V. Smith United States
(University of Chicago; Editor,
International Journal of Ethics)

1949 Austin W. Scott United States
(Professor, writer, distinguished authority
in the law of trusts)
1950 Hon. Arthur T. Vanderbilt United States
(Chief Justice, Supreme Court of New Jersey)
1951 Hon. Robert H. Jackson United States
(Associate Justice, Supreme Court of the
United States)
1952 Albert J. Harno United States
(Dean of the College of Law, University
of Illinois)

1953 HOn. James William Fulbright United States
(United States Senator)
1954 Prank H. Bartholomew United States
(President of United Press)
1955 Hon. Lewis W. Douglas United States
(United States Ambassador to Great Britain)
1956 Hon. Harold R. Medina United States
(Judge, United States Court of Appeals)
1957 Hon. Stanley P. Reed United States
(Associate Justice, Supreme Court of the
United States)
1958 Erwin N. Griswold United States
(Dean of School of Law, Harvard University;
Solicitor General of the United States)
1959 Catherine Drinker Bowen United States
(Legal biographer)
1960 General Mark Clark United States Army
(United States High Commissioner of Austria)
1961 Eugene V. Rostow United States
(Dean, Yale Law School)
1962 Hon. Archibald Cox United States
(Solicitor General of the United States)
1963 Arthur H. Dean United States
(Lawyer; Special United States Ambassador
to Korea, 1953-54)
1964 George P. Kennan United States
(United States Ambassador to Russia and
Yugoslavia)

1965 Hon. Henry J. Friendly United States
(Judge, United States Court of Appeals)

1966 Dr. Harlan Henthorne Hatcher United States
(President of the University of Michigan)

1967 Hon. John Jay McCloy United States
(Lawyer; United States Military Governor and
High Commissioner for Germany; President of
the World Bank)

kI I

1968 Albert E. Jenner, Jr. United States
(Distinguished Chicago lawyer).

1969 The Right Honourable Lord Denning
Master of the Rolls, London, England

1970 Edward Bennett Williams, Esq.
Williams & Connolly, Washington, D. C.

1971 The Honorable Sam J. Ervin, Jr.
United States Senate, Washington, D. C.

1972 Alexander M. Bickel
Professor of Law, Yale Law School
New Haven, Connecticut

1973 The Honorable Edward T. Gignoux
District Judge, United States District
Court, Portland, Maine
1974 The Honorable William H. Rehnquist
Associate Justice, Supreme Court of
the United States, Washington, D. C.

1975 Dean Roger C. Cramton
Cornell Law School
Ithaca, New York 14853

1976 Senator Frank Church
Senate Office Building
Washington, D. C. 20510

1977 Francis T. P. Plimpton, Esq.
New York, NY

1978 Hon. Eleanor Holmes Norton, Chair
U. S. Equal Employment Opportunity Commission
Washington, D. C.

1979 Chesterfield Smith
Lawyer
Tampa, Florida

SPEECHES OF CHESTERFIELD SMITH

SPEECH NUMBER 214

VOLUME XVI

ADDRESS BY: CHESTERFIELD SMITH
LAWYER
TAMPA, FLORIDA

BEFORE: NOVA UNIVERSITY CENTER
FOR THE STUDY OF LAW
FT. LAUDERDALE, FLORIDA
FRIDAY, NOVEMBER 16, 1979

TITLE: THE OLD LAWYER SAID: "I
LOOK OUT FOR MY PAYING
CLIENTS" -- THE YOUNG
LAWYER RESPONDED: "BUT
GOOD LAWYERS MUST ALSO DO
SOME FREE PUBLIC SERVICE,"

TWENTY-FIVE MINUTES

TIME:

DOES AN ETHICAL LAWYER HAVE AN OBLIGATION TO GIVE

SOME PORTION OF PROFESSIONAL TIME FOR FREE PUBLIC SERVICE?

IS A LAWYER REQUIRED TO RENDER FREE PROFESSIONAL SERVICE

WITH THE SAME PROFESSIONAL DEDICATION AS IS OWED TO A

LAWYER'S PAYING CLIENTS?

IS IT TIME FOR AN EVOLUTIONARY

PROGRESS IN LAWYER ETHICS BY NOW IMPOSING PEER PRESSURE ON

THOSE WHO UNREASONABLY IGNORE THAT LOFTY OBLIGATION OF

LAWYERS?

SHOULD THOSE LAWYERS WHO AFTER NOTICE AND

HEARING REPEATEDLY REFUSE TO ASSUME THEIR PART OF THAT

PROFESSIONAL OBLIGATION HENCEFORTH BE CHASTISED BY THE

ORGANIZED BAR?

QUALIFIED "YES",

I WOULD ANSWER EACH QUESTIONS WITH A

MANY INDIVIDUAL LAWYERS DO NOT DISCHARGE IN

ANY SUBSTANTIAL WAY WHAT I PERCEIVE TO BE AN EXISTING PROFESSIONAL

OBLIGATION TO IMPROVE THE LAW TO ENHANCE THE ADMINISTRATION

OF JUSTICE AND TO MAKE BETTER THE SERVICES OF THE LEGAL

PROFESSION.

THE GRANDIOSE LEGEND OFTEN VOICED AT BAR

MEETINGS THAT LOCAL LAWYERS AS NEEDED WILL ROLL UP THEIR

SLEEVES AND GIVE UNSELFISHLY OF THEIR TIME TO DO THAT WHICH

LAWYERS OUGHT TO DO UNFORTUNATELY IS A MERE FANTASY,

A GOOD LAWYER AS A MEMBER OF A LEARNED PRO-

FESSION QUITE CLEARLY SHOULD CULTIVATE KNOWLEDGE OF THE

LAW BEYOND ITS USE FOR PAYING CLIENTS AND A GOOD LAWYER

SHOULD EMPLOY THAT ADDED KNOWLEDGE IN THE BETTERMENT OF THE

LAW,

INDUBITABLY THAT TRUISM LONG HAS BEEN A PART OF

INDEED A GOOD LAWYER ALMOST BY DEFINITION

LAWYERING,

MUST BE CONTINUALLY MINDFUL OF CURRENT DEFICIENCIES IN THE

ADMINISTRATION OF JUSTICE AND WITHOUT PERSONAL REWARD

CONTINUALLY WORK FOR BETTER COURTS MORE QUALIFIED JUDGES -

AND FAIRER AND MORE EXPEDITIOUS LEGAL PROCEDURE,

A GOOD

LAWYER MUST TOO BE COGNIZANT THAT MANY PEOPLE STILL CANNOT

AFFORD ADEQUATE LEGAL ASSISTANCE AND THAT THE GOOD LAWYER

SHOULD NOW AS IN THE PAST DEVOTE PROFESSIONAL TIME IN THEIR

BEHALF,

BUT TODAY A GOOD LAWYER MUST BE EQUALLY AWARE

THAT THERE ARE MANY OTHER AREAS WHICH CRY OUT IN EQUALLY

LOUD VOICES FOR THE LAWYER'S DISTINCTIVE TALENTS PLACES

WHERE SOCIETAL LEGAL REQUIREMENTS PRESENTLY ARE NOT FULLY

MET.

THE FACT THAT SOME GOOD LAWYERS HAVE PROVIDED

LEGAL SERVICES TO THE POOR AT NO COMPENSATION AS IN LEGAL

AID OR FOR REDUCED COMPENSATION AS IN GOVERNMENT SPONSORED

LEGAL SERVICE PROGRAMS CANNOT VALIDLY BE LONGER USED BY

THE MASS OF LAWYERS NOT SO PARTICIPATING AS A SHIELD AGAINST

THE RENDERING OF FREE PUBLIC SERVICE THEMSELVES,

THE

INDIGENT CLIENT WHILE SIGNIFICANT IS ONLY A PART OF

THE PROBLEM A PART IN WHICH THE GOVERNMENT RECENTLY

QUITE PROPERLY HAS ASSUMED A FAR GREATER RESPONSIBILITY THAN

THE LEGAL PROFESSION.

WORKING FREE PART-TIME IS ADMITTEDLY NOT THE BEST WAY

TO ACHIEVE LASTING ECONOMIC SUCCESS EVEN IF SUCH FREE WORK BE

LABELED "PUBLIC SERVICE".

MANY MAGNIFICENT LAWYERS OVER THE

YEARS HAVE RENDERED TO THE PUBLIC SUBSTANTIAL SERVICE WITHOUT

RECEIVING PECUNIARY COMPENSATION BUT WE MUST ACKNOWLEDGE

THAT NOT ALL OR EVEN MOST HAVE,

THUS IT SEEMS TO ME

SUITABLE PROPER SEEMLY AND TIMELY THAT THE ORGANIZED

LEGAL PROFESSION FORMALLY RECOGNIZE THAT EACH LAWYER PRESENTLY

HAS AN OBLIGATION FOR SOME FREE PUBLIC SERVICE WHICH IF

UNREASONABLY IGNORED WARRANTS PROFESSIONAL SANCTIONS.

HERETOFORE IT PERHAPS HAS BEEN PROFESSIONALLY

ACCEPTABLE FOR SOME LAWYERS TO SERVE ONLY PAYING CLIENTS -

BUT IF THAT IS SO A NEW PROFESSIONAL STANDARD IS ABORNING,

THE SUBSTANTIAL RECOGNITION WHICH HAS BEEN AFFORDED IN YEARS

PAST TO THOSE LAWYERS WHO HAVE GROUND AWAY AT THEIR CLIENTS'

DEMANDS DAY AFTER DAY AND YEAR AFTER YEAR TENDING THE

STORE NEVER LEAVING THE OFFICE MINDING WHAT HAS BEEN

TRADITIONALLY STYLED "THEIR OWN BUSINESS" IS UNDERGOING

-5-

NO LONGER CAN THE OLD LAWYER OR THE

YOUNG LOOK OUT ONLY FOR PAYING CLIENTS,

NO LONGER CAN

THE LEGAL PROFESSION MERIT PUBLIC APPROBATION UNDER A RANDOM

AND HAPHAZARD STANDARD THAT LETS SOME LAWYERS DO GOOD AND

SOME DO NOT SO GOOD,

THE FACT THAT SOME LAWYERS STILL

MAJESTICALLY DO WHAT GOOD LAWYERS OF A DIFFERENT DAY AND

TIME DID AS A COMPLETE DISCHARGE OF THEIR THEN MORE RESTRICTED

PROFESSIONAL ENGAGEMENTS CANNOT EXONERATE TODAY OTHER LAWYERS

FROM FREE PUBLIC SERVICE.

LAWYERS WHO WORK WITH NO

COMPENSATION OR WITH SUBSTANTIALLY REDUCED COMPENSATION -TO

MITIGATE THE PROBLEMS OF THE INDIGENT ARE AND ALWAYS WILL

BE RENDERING VALUABLE PUBLIC SERVICE BUT EVEN SO -THE

ENTIRE LEGAL PROFESSION HAS A DUTY TO DO WITHOUT PECUNIARY

-6-

SUBSTANTIAL CHANGE.

BENEFIT THOSE OTHER EVEN MORE ESSENTIAL BUT NOW OFTEN

NEGLECTED SOCIETAL ACTIVITIES BEST PERFORMED BY LAWYERS,

THE PARAMETERS OF LAWYER FREE PUBLIC SERVICE

HENCEFORTH MUST BE AS BROAD AND FLEXIBLE AS THE MINDS OF

THOSE WHO WILL DISCHARGE THAT RESPONSIBILITY.

THAT

OBLIGATION EXTENDS TO FULFILLING THE ESSENTIAL LEGAL NEEDS

OF ALL AMERICANS RICH OR POOR YOUNG OR OLD MALE OR

FEMALE BLACK OR WHITE HAPPY OR SAD GRACIOUS OR SURLY -

INDIVIDUALS OR GROUPS ALL PEOPLE WHOEVER AND FOR WHATEVER

REASONS.

IF THAT OBLIGATION IS TO BE MET EACH LAWYER

MUST HELP,

A LAWYER'S CONTRIBUTION TO THE PUBLIC INTEREST

THROUGH FREE PUBLIC SERVICE CAN NEVER BE JUDGED BY WHAT

-7-

WAS ACHIEVED OR BY THE MONETARY VALUE OF THE SERVICE

CONTRIBUTED.

IN ALL EVENTS THAT PRICELESS AND UNIQUE

MEASURE OF PROFESSIONAL DEVOTION CONTRIBUTED TIME MUST

BE A PRIME FACTOR IN THE DETERMINATION OF WHETHER A LAWYER

FULLY HAS DISCHARGED THOSE OBLIGATIONS OF FREE PUBLIC SERVICE.

EACH LAWYER MUST PERFORM THAT INDIVIDUAL DUTY NO ONE ELSE

CAN.

FINANCIAL CONTRIBUTIONS NO MATTER HOW EXTENSIVE -

CANNOT DISCHARGE THE INDIVIDUAL LAWYER'S PROFESSIONAL OBLIGATION

FOR FREE PUBLIC SERVICE,

THE LEGAL PROFESSION IS NOT AN

ELITIST ONE IN WHICH THE ECONOMICALLY SUCCESSFUL CAN BUY

AMNESTY FOR NOT DOING WHAT ALL LAWYERS ARE OBLIGATED TO DO,

INDEED IF THE LAW TRULY IS TO REMAIN THE VERY SPECIAL AND

UNIQUE LEARNED PROFESSION THAT IS HISTORICALLY HAS BEEN -

THOSE OBLIGATIONS MUST BE NON-TRANSFERABLE.

A MAJOR DIFFICULTY IN LAWYERS CONTRIBUTING TO THE

PUBLIC FREE PROFESSIONAL SERVICE IS IN STRIKING THE PROPER

BALANCE BETWEEN THAT PROFESSIONAL TIME DEVOTED FOR PUBLIC

SERVICE AND THAT PROFESSIONAL TIME NEEDED FOR THE ECONOMIC

NECESSITIES WHICH FACE ALL PROFESSIONAL PEOPLE,

UP TO

NOW THOSE MANY LAWYERS WHO LONG HAVE ACKNOWLEDGED SOME

RESPONSIBILITY FOR FREE PUBLIC SERVICE BOTH INDIVIDUALLY

AND COLLECTIVELY HAVE HAD NO ORGANIZATIONAL GUIDANCE AS TO

THE TYPE OR EXTENT OF ACTIVITIES THAT WILL DISCHARGE THAT

OBLIGATION.

THE COLLECTIVE RESPONSIBILITY OF LAWYERS MUST

BE TRANSLATED INTO A DEFINED PROFESSIONAL DUTY THAT EACH

LAWYER INDIVIDUALLY RENDER A SHARE OF THE NEEDED FREE PUBLIC

SERVICE.

IF THAT ETHICAL DEMAND IS PLAINLY ENUNCIATED -

-9-

WITHOUT EQUIVOCATION OR AMBIVALENCE THE DECISIONAL PROCESS

NOW UNIVERSALLY UTILIZED BY THE ORGANIZED BAR IN ESTABLISHING

ETHICAL BOUNDARIES WILL IN TIME EVOLVE DEFINITIVE GUIDELINES

FOR ITS APPLICATION.

THROUGH TRIAL AND ERROR THROUGH

EXPERIMENTATION LAWYERS ULTIMATELY CAN INCORPORATE INTO

DECISIONS INTERPRETING A REVISED CODE OF PROFESSIONAL RESPONSIBILITY

THE WHO HOW WHAT AND WHEN OF THE FREE PUBLIC SERVICE

THAT SOCIETY SHOULD RECEIVE IN EXCHANGE FOR ITS GRANT OF THE

EXCLUSIVE PRIVILEGE TO PRACTICE LAW.

THERE ARE OF COURSE INHERENT DIFFICULTIES IN AN

ADJUDICATION OF PROFESSIONAL PERFORMANCE INVOLVING SUCH

SUBJECTIVE CONSIDERATIONS AS WORK HABITS JOB REQUIREMENTS -

ORGANIZATION AND SELF DISCIPLINE INTELLIGENCE EMPLOYMENT

-10-

RESTRAINTS PUBLIC RESPONSIBILITIES INTEGRITY PERSONAL

CHARACTER AND PROFESSIONAL KNOW-HOW.

HOWEVER PER-

PLEXITY IN ENFORCEMENT HAS NEVER PREVENTED THE ORGANIZED BAR

FROM ADOPTING EVER STRICTER STANDARDS,

CERTAINLY LAWYERS HAVE INDIVIDUAL CHARACTERISTICS

AND PRACTICE DEMANDS WHICH WILL PREVENT THEM FROM BEING

"EQUAL" IN ALL PROFESSIONAL CONTRIBUTIONS.

LAWYERS OF

NECESSITY UNDER GENERAL ASPIRATIONAL GOALS TO BE OUTLINED BY

THE ORGANIZED BAR MUST BE JUDGED ON THEIR SUBSCRIPTIONS TO

FREE PUBLIC SERVICE WITH A FULL RECOGNITION OF THEIR DIFFERING

CIRCUMSTANCES,

IN SOME CASES THOSE FREE PUBLIC SERVICE

ACTIVITIES MIGHT EMBRACE EXTENSIVE WORK WITHIN THE ORGANIZED

BAR ITSELF SUCH AS DISCIPLINARY ACTIVITIES OR LAW REFORM,

-11-

IN OTHERS IT MIGHT MEAN WORKING WITH A PUBLIC INTEREST LAW

FIRM RENDERING LEGAL SERVICES TO THOSE WHO ARE UNABLE TO

OBTAIN THOSE SERVICES THROUGH THE NORMAL MEANS OF DELIVERY -

OR REPRESENTING CHARITABLE ORGANIZATIONS.

TO SOME LAWYERS -

PERHAPS FREE PUBLIC SERVICE MIGHT WELL INVOLVE MAINTAINING

AND ENHANCING THE LEGAL COMPETENCE OF OTHER LAWYERS WORKING

TO IMPROVE THE AVAILABILITY AND DELIVERY OF LEGAL SERVICES -

HELPING WITH CIVIL RIGHTS LAW OR POVERTY LAW WORKING AS A

DEFENDER OF THOSE CHARGED WITH CRIME WHO ARE UNABLE TO

SECURE COMPETENT COUNSEL OR REPRESENTING DIFFUSED INTERESTS

IN ADVERSARY PROCEEDINGS INVOLVING THE PUBLIC AT LARGE.

ALMOST CERTAINLY ETHICAL RECOGNITION OF PUBLIC SERVICE

MUST ENCOMPASS AT LEAST A MODICUM OF ACTIVITY DESIGNED TO

IMPROVE THROUGH CONSTITUTIONAL OR STATUTORY REVISION THE

-12-

MANY LEGITIMATE LEGAL INTERESTS

IN FIELDS SUCH AS THE ENVIRONMENT WELFARE CONSUMER

PROTECTION CIVIL LIBERTIES PRIVACY AND THE POOR REMAIN

EITHER NOT REPRESENTED OR UNDER-REPRESENTED BEFORE LEGIS-

LATURES EXECUTIVE AGENCIES AND COURTS,

THE BEST WAY TO MEASURE THE INDIVIDUAL FREE PUBLIC

SERVICE REQUIRED FOR A LAWYER WILL VARY FROM AREA TO AREA

AND PERHAPS FROM BRANCH OF THE LAW TO BRANCH OF THE LAW.

ADDITIONALLY THERE WILL BE MULTIPLE AREAS OF FREE PUBLIC

SERVICE OTHER THAN THOSE FEW THAT I HAVE SUGGESTED WHICH

AS ALTERNATIVES OR SUPPLEMENTS ARE BETTER SUITED TO BOTH

SOCIETY AND THE LEGAL PROFESSION,

ONLY A LAWYERS' PEER

GROUP SHOULD DETERMINE WHETHER VARIOUS ACTIVITIES REPORTED

-13-

JUSTICE SYSTEM AS A UNIT.

TO THE ORGANIZED BAR AS HAVING BEEN PERFORMED BY THAT PARTICULAR

LAWYER ON A RECURRING AND SUBSTANTIAL BASIS ARE AMONG THOSE

THINGS WHICH FREELY SHOULD HAVE BEEN CONTRIBUTED TO THE

PUBLIC WEAL.

IN ALL SUCH DETERMINATIONS -DIVERSITY AND

EXPERIMENTATION MUST BE FOSTERED AND SUPPORTED.

IS NO SINGLE APPROACH.

THROUGH VARIETY THROUGH TRIAL

AND ERROR THROUGH EVOLUTION THE ORGANIZED BAR BEST CAN

GAIN A PROPER UNDERSTANDING OF THE WAYS IN WHICH INDIVIDUAL

LAWYERS MOST MEANINGFULLY MAY RENDER GENEROUS PUBLIC SERVICE.

SOCIETY LONG AGO MADE A DETERMINATION THAT A

FIERCELY INDEPENDENT AND UNSHACKLED LEGAL PROFESSION IS

ESSENTIAL TO OUR SYSTEM OF GOVERNMENT AND TO THE INDIVIDUAL

RIGHTS OF ITS CITIZENS.

IT PLACED LAWYERS IN A POSTURE TO

-14-

THERE

TO BE BOTH FREE AND INDEPENDENT BY ESTABLISHING A MONOPOLY

FOR THOSE WHO PRACTICE LAW.

IN GRANTING TO LAWYERS THAT

PRIVILEGE THE NURTURING OF CERTAIN SKILLS UTILIZED

EXTENSIVELY IN THE PRACTICE OF LAW SUCH AS ADVOCACY -

COUNSELING NEGOTIATING AND DRAFTING WERE CHILLED AND

PERHAPS DENIED TO NON-LAWYER MEMBERS OF SOCIETY.

THE GRANT

OF MONOPOLISTIC PRIVILEGES BY SOCIETY TO A LIMITED NUMBER

OF PEOPLE TO RENDER SPECIALIZED PROFESSIONAL SERVICES ALWAYS

CREATES AN OBLIGATION TO MAKE AVAILABLE TO SOCIETY THOSE

SPECIAL SKILLS NURTURED BY THAT MONOPOLY,

THE LEGAL PROFESSION CAN BEST PERFORM IF ITS

MORES CUSTOMS STANDARDS AND OFFICES ARE SELF-DETERMINED,

IF A LEGAL MONOPOLY IS A VIABLE SOCIETAL INSTITUTION -

-15-

	Table of Contents
	"Public criticism of judiciary...
	Investiture of the honorable William...
	Morrison lecture: "The old lawyer...
	Address before Nova University...
	Address before Nova University...
	"Public criticism of the judiciary...
	Address to mid-winter meeting of...
	"Random wanderings through the...
	Remarks before judicial/media seminar,...
	Remarks at annual meeting, Detroit...
	Remarks at BPI Annial law luncheon...
	Remarks at Annual law day banquet,...
	Headliners breakfast, Daytona Beach...
	Re: ERA statement submitted to...
	Statement of Chesterfield Smith...
	Remarks of Chesterfield Smith before...
	A judicial system must respond...
	Remarks of Chesterfield Smith at...
	Do lawyers have an affirmative...
	Remarks of Chesterfield smith before...
	Future of tort litigation

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
125	html_echo_mainwriter.add_text_to_page	Finished reading and writing the file