Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar

PETITIONER:Brotherhood of Railroad Trainmen
RESPONDENT:Virginia ex rel. Virginia State Bar
LOCATION:Alabama State Capitol

DOCKET NO.: 34
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 377 US 1 (1964)
ARGUED: Jan 13, 1964
DECIDED: Apr 20, 1964

Facts of the case

Question

  • Oral Argument – January 13, 1964 (Part 2)
  • Audio Transcription for Oral Argument – January 13, 1964 (Part 2) in Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar

    Audio Transcription for Oral Argument – January 13, 1964 (Part 1) in Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar

    Earl Warren:

    Number 34, Brotherhood of Railway Trainmen, Petitioner, versus Virginia on the relation of the Virginia State Bar.

    Beecher E. Stallard:

    Mr. Chief Justice.

    Earl Warren:

    Mr. Stallard.

    Beecher E. Stallard:

    If it please the Court.

    On June 29, 1959 the respondent who was the Virginia State Bar instituted an equity proceeding in the Chancery Court of the City of Richmond against the petitioner.

    It alleged among other things that the Brotherhood the petitioner maintained a Legal Aid Department and while collecting certain information for itself it solicited business for legal counsel and it detailed how it did it.

    It said that large members were injured the local secretary of the lodge reported to the Legal Aid Department which we now call Legal — Department of Legal Counsel and in turn an investigator would go out and secure certain information and also recommend Legal Counsel.

    It also alleged that the claims handled by the Legal Counsel were handled on a contingent fixed-fee basis by the Brotherhood and followed that Legal Counsel supported and maintained the Department of Legal Aid, which is Department of Legal Counsel now.

    The Brotherhood accrued the Bill of Complaint and said that prior to 08/01/59 which was the decision of the Illinois case it did set the fee of Legal Counsel.

    Legal Counsel did support the Department of Legal Counsel which was, at one time, legal aid.

    They said however, in their answer and evidence showed that three months before this suit was instituted, and this is the words we used, “The Brotherhood no longer sets the fee to be charged by Legal Counsel.

    The Brotherhood did not share in the direct or indirect of the fee.

    The Brotherhood’s Counsel no longer contributes to the support the Legal Aid Department.

    Now, the Brotherhood in its answer and also by written motion raised the constitutional question.

    They said they had a legal right to inform its member generally and specifically that they should employ a Legal Counsel where they were injured and they suggested a counsel who is capable of handling it, who is a legal aid.

    William J. Brennan, Jr.:

    Mr. Stallard.

    Beecher E. Stallard:

    Yes?

    William J. Brennan, Jr.:

    It would help me a great deal if you could tell me looking at the judgment — the final decree here, I have it at page —

    Beecher E. Stallard:

    27.

    William J. Brennan, Jr.:

    25 I think of the petition for writ.

    It may be another page.

    Which of those provisions A to H are you here complaining about?

    Beecher E. Stallard:

    We think that about four are sole partners that it pardons all the others but we could live under and starting with C —

    William J. Brennan, Jr.:

    Yes.

    Beecher E. Stallard:

    From holding out lawyers selected by it as the only approved lawyer to aid the members or their family.

    William J. Brennan, Jr.:

    You — you say —

    Beecher E. Stallard:

    D —

    William J. Brennan, Jr.:

    — could live that that or —

    Beecher E. Stallard:

    We cannot live with that, no, sir.

    William J. Brennan, Jr.:

    That’s right.

    Beecher E. Stallard:

    That — that pardons all the other.

    D, from in —

    William J. Brennan, Jr.:

    E?

    Beecher E. Stallard:

    D.

    William J. Brennan, Jr.:

    Alright.

    Beecher E. Stallard:

    From informing any lawyer that an action has occurred and furnish the name and address on an injured or deceased member for the purpose of obtaining legal employment for such lawyer or in any other manner, soliciting or encouraging such employment of selected lawyer.

    And last, which would be the cleanup clause under H and from doing any act or commendation of facts and from formulating and putting into practice any plan pattern or design.

    The result of which is to channel legal employment to any particular lawyer or groups of lawyers.

    We say those four things would literally destroy any communication between our members and the Brotherhood.

    Potter Stewart:

    You went a little fast for me.

    Beecher E. Stallard:

    (Voice Overlap)

    Potter Stewart:

    That’s one reason I was having trouble finding the —

    Beecher E. Stallard:

    Fact.

    Potter Stewart:

    Decree, and I don’t have it on page 4 and 5 of the petitioner for the writ of certiorari.

    Can you summarize again in a word or two what it is specifically that you object to?

    In other words, demand —

    Beecher E. Stallard:

    We say that —

    Potter Stewart:

    — in this question.

    Beecher E. Stallard:

    The Brotherhood cannot select a qualified lawyer to handle FELA cases and cannot suggest those lawyers to its members.

    In other words, no mode of expression at all, no communication between the Brotherhood and its members and the members are the Brotherhood.

    In other words, it — there is no permissible area at all.

    It completely destroys communication.

    Potter Stewart:

    (Inaudible)

    Beecher E. Stallard:

    The C.

    Potter Stewart:

    C?

    Beecher E. Stallard:

    Yes sir and the last one, which would be H does that too.

    As a matter of fact, H goes much further.

    It says they can’t channel any business to any lawyer not necessarily Legal Counsel but any lawyer that cannot channel the business to.

    William O. Douglas:

    If the word “only” in line five from the top of page 5, restriction was — would be satisfied?

    Beecher E. Stallard:

    From holding out lawyers selected as the only approved lawyers to aid no sir, we would not because H goes ahead and says, “You cannot suggest any lawyer or any groups of lawyers because that would be channeling legal business.”

    Beecher E. Stallard:

    Now, this case has a little history to it.

    The first case —

    Tom C. Clark:

    Mr. Stallard.

    Beecher E. Stallard:

    Yes?

    Tom C. Clark:

    The union I understand has come up with the plan of the Brotherhood that under H, if the union desired to provide three legal aids in FELA cases to those of its members who wanted to resort to three legal aids your view under H, that would be prohibited by this injunction?

    Beecher E. Stallard:

    The Brotherhood does not want to, but if it wanted to it would be prohibited because that would be channeling legal business to any lawyer or any selected lawyer.

    Tom C. Clark:

    Who licensed to a new facility Union?

    (Inaudible)

    Beecher E. Stallard:

    That perhaps would be prohibited under Canon 35.

    And, Mr. Drinker — Henry S. Drinker said that ought to be changed permit it and also another gentleman had said that.

    Now, coming back to the history of this case, the first case, I’d like to go back to the reasons for the extension and I think the reasons are very sound.

    The Brotherhood found that a large number of its members were injured and killed each year because they worked in hazardous business.

    They found that railroads had some unscrupulous claim agents.

    They further found that their average lawyer knew nothing to whirl about FELA cases.

    I’ll give an example in a few minutes.

    It also found that the rules of certain railroads prohibited members from talking to any outsider or employing a lawyer.

    They fired them if they employed a lawyer or if they talked to anybody on the outside.

    Fortunately, the railroad Brotherhood the plaintiff or petitioner here got the FELA Section 60 amended so that it made it unlawful for railroad to fire a man talking to the outsiders.

    Now, Mr. Lush who is general manager here for a number of years in this Legal Aid Department, he gives two examples and I’d like to give his example.

    He gives more but I’ll give two.

    He said that the Safety Appliance Act required railroads to have a coupler which would couple or uncouple automatically and he said, “Sometimes, the member,” and he gave a specific example on page 915 to 937.

    He said, “This man went into jiggle down the block and lost his arm.”

    The claim agent of the railroad came around and asked him, “Was the coupler broken?”

    He said “No.”

    Then when he wrote up his statement he said, “The coupler was not defective.”

    He said, “Our member, as an average railroad man, cannot differentiate between broken and a defective coupler.”

    He gave two other very astounding examples.

    He said, “An inexperienced lawyer in FELA cases did this to their members.

    The member lost 20 years seniority because the lawyer was inexperienced.

    Another one lost 25 years of seniority.”

    Beecher E. Stallard:

    And he goes on and gives other examples.

    Now, the first case that ever came —

    Tom C. Clark:

    (Inaudible)

    Beecher E. Stallard:

    Sir?

    Tom C. Clark:

    Did they (Inaudible)

    Beecher E. Stallard:

    No, sir.

    That would be handled under selective bargaining agreement, but it show —

    Tom C. Clark:

    The legal aid handled the FELA.

    Beecher E. Stallard:

    Sir?

    Tom C. Clark:

    The legal aid handled the FELA?

    Beecher E. Stallard:

    Yes, sir.

    But in negotiating the settlement, the man lost his seniority.

    He might have gotten a few dollars.

    If an experienced lawyer would not have lost his seniority it would’ve been a great deal more than maybe the settlement $2,000-$3,000.

    The first important case to come to an appellate court was Ryan versus the Pennsylvania Railroad.

    Mr. Ryan, a distinguished Chicago lawyer, was referred a case by the Brotherhood.

    He sent a notice of lien in and the Pennsylvania Railroad settled behind his back.

    Mr. Ryan brought a lawsuit on that lien.

    The Pennsylvania Railroad defended on the ground that he had secured the case for solicitation and it was against public policy to sue on a contract that was — violated public policy.

    The court said and made a clear distinction in that case between the referral by — made by the Brotherhood and regional and unlawful solicitation that court further said that the plan was alright and they put great emphasis on the plan because it served a worthy purpose and the lawyer who said that Mr. Ryan was the beneficiary of unethical conduct, they said he should not have made that statement.

    It’s an unworthy distinction the lawyer made.

    The next case that came before the Court in 1933, it was the Cleveland Bar in Ohio.

    They brought a disciplinary action against one of the Legal Counsel, Judge Newcomer.

    The Court refused to enjoin Judge Newcomer but did reprimand him.

    It is a two-to-one decision.

    The decision had a dissent and that was Justice Levi.

    Justice Levi had said it is not claimed that the — by the Cleveland Bar that this was an ordinary harmless case and it was a different case and he said, “Even the members of Rule 28 — the committees if there is a conflict of opinion, then the Supreme Court of Ohio should revise Rule 28.”

    The next case was a California case, Hildebrand.

    That’s the only Supreme Court case before the Illinois Supreme Court decision.

    And, actually, we are arguing here for Illinois made our plan.

    Beecher E. Stallard:

    We are here saying that the Illinois Supreme Court which said that they made the rules whereby lawyers would have to practice after, said they made them and they enforced them.

    And they said, “We think this plan that we are setting down here does not conflict with any other practice of law or unauthorized practice of law.”

    (Inaudible)

    Beecher E. Stallard:

    They did not use the word, but they gave us our minimum rights and we feel that they were constitutional rights and that’s why they stopped.

    We think they should have given us more, but they gave us our minimum.

    We’re here defending that and that court, and I’d like to get to that in a minute because there’s good background there many railroads, the bars were in that.

    It is well heard.

    One of the Justices was a special commissioner.

    I think I’ll come to that case immediately because I think that is the crux of our argument.

    The Brotherhood went in before the Supreme Court on a regional petition and asked for a declaratory judgment.

    They wanted to know their rights and obligation.

    Their counsel wanted to know their rights and obligation.

    The Supreme Court of Illinois has pointed that one of their former Chief Justice Judge Thomas.

    He had hints and the people who participated were the Illinois Bar, the Chicago Bar, 28 railroads — 27 railroads.

    The American Bar filed a friendly brief.

    While the court did not approve our plan as then being operated, they gave directions.

    They said, “First, you can have your investigators.”

    The investigators can give the information to the member and this is the real part.

    He said, “You can give general information to your membership and you can give specific information on these questions that you hire a lawyer.

    The appellant can tell them to — who to hire because you’ve looked in and known something about their capabilities.”

    Now the Court said, “We couldn’t do these things and we say we are not doing it.”

    The court says there’s no financial connection whatsoever.

    At that time counsel maintained the Legal Aid Department.

    At that time, the counsel got only 25% I don’t think it’s shown in the record but he does get — got 25%.

    We were setting that fee.

    We told — we thought that was enough.

    That started in 1920 — 1930.

    They said “You cannot set the fee.

    We do not set the fee today.

    The fee is set by the law and its client.

    Beecher E. Stallard:

    We get no fee from him whatsoever.”

    In 1900, the record show —

    Could you take a typical case and state exactly what it is that you’re — the Brotherhood is doing now with reference to —

    Beecher E. Stallard:

    I said the Brotherhood —

    — injured plaintiff?

    Beecher E. Stallard:

    The evidence shows that the Brotherhood, in 1960 —

    No, I’m not — yes now.

    Beecher E. Stallard:

    Sir?

    At the present time.

    Beecher E. Stallard:

    Well, I want to show what has happened from 1960 —

    Yes.

    Beecher E. Stallard:

    Because in 1960, they paid all — at the end of the year Legal Counsel would send in maintaining the Legal Aid Department.

    They stopped at April 1, 1959 but they received for those three months in 1960 about $23,000.

    They — put with that from $55,000-$66,000 and maintained the Legal Aid Department.

    In 1961, the Department of Legal Aid was supported wholly by their own money from the general fund it was $85,000.

    Now, all we do is make merely referrals.

    Well, supposing I am an injured member of the Brotherhood and I come to you and I say I had an accident.

    Now, what do you do?

    Beecher E. Stallard:

    We say that you ought to go and consult Legal Counsel.

    You can say back, “No, I’ll not have a lawyer at all” or you can say back “I would take him” or “I’ll get my own lawyer.”

    The evidence shows that he can get his own lawyer anytime he wants to.

    It’s in the record.

    You give me a name of the lawyer that you recommend?

    Beecher E. Stallard:

    We give you a name but you do not have to take it.

    Some of them — record shows some of them did accept and some did not.

    The Brotherhood is putting out about $85,000 a year in support of this department.

    He’s getting no money back in whatsoever.

    If I take your lawyer, what happens?

    Beecher E. Stallard:

    The lawyer makes his own contract.

    He sets his own fee and he keeps it all.

    Beecher E. Stallard:

    And the member gets the service of the Brotherhood free because all of them pay for it.

    Well, they — they still (Inaudible).

    Now, we no longer have investigators.

    At one time, we had as many as 50.

    We no longer have investigators paid, but we do have designated investigators.

    The president says that, “If he wants one of these accidents investigated, he give a call to the local chairman or some officer of the local union and he has authority in his bailiwick.

    So they speak to investigate and make the report.”

    But that — he said, “Most the cases were investigated but there were many never investigated.”

    Now, that’s all we do.

    We investigate, turn the investigation over to the member, suggest a lawyer who’s capable we think, and that’s the end of our service.

    Of course, we are interested and we follow it.

    We’re interested to see how it comes out, but we know where in direct litigation he was not alleged.

    We do not in anyway conduct a litigation at all.

    If I am injured, as one of your members and I do nothing about it I just need to decide I want to get a lawyer of my own or get no lawyer at all.

    Does the Brotherhood take any initiative in me?

    Beecher E. Stallard:

    None, whatsoever.

    There are two witnesses who testified in this case and the wife testified and said, “They told us we could take Legal Counsel if we wanted to or we could get our own counsel.”

    That’s in the record by evidence adduced by the respondent.

    We take the position that the Brotherhood and its members are the same.

    Potter Stewart:

    In answer to Justice Harlan’s question I gathered from your summary of what those witnesses said that the Brotherhood at least takes that much initiative.

    They tell the injured man that he can get — he can get one of the lawyers you recommend or a lawyer of his own choice and don’t they all further advice him not to settle without a lawyer?

    Beecher E. Stallard:

    We tell him exactly —

    Potter Stewart:

    But did you emphasize that throughout your brief?

    Beecher E. Stallard:

    We — we tell him exactly what the Supreme Court of Illinois said we could tell him.

    You could tell him, “Tell your whole membership — generally we think you ought to consult lawyers because this is a technical matter.”

    Potter Stewart:

    Yes.

    Beecher E. Stallard:

    And it takes an expert, we tell him generally and we tell him specifically, “We think you should employ this lawyer.”

    But they can tell us, it’s in our brief, you could tell us, “We don’t want your lawyer.

    We’ll go to our own —

    Potter Stewart:

    I understand that —

    Beecher E. Stallard:

    lawyer.”

    “We don’t need a lawyer, we’ll settle directly to the railroad.”

    Potter Stewart:

    I understand that.

    But what — what if — what if John Smith is injured on the railroad and he’s an employee and one of your members, and he sits and does nothing.

    He’s in — he’s lying there in his hospital bed.

    What if anything that the Brotherhood do?

    Beecher E. Stallard:

    Nothing at all but advice him of legal service.

    Potter Stewart:

    Well, so thank you very much.

    Beecher E. Stallard:

    (Voice Overlap) we do advice him of that because we fee that the Supreme Court said we could do it.

    Potter Stewart:

    I understand that but I just want to point what — factually, what you do.

    You send a — do you send an agent there to see him in the hospital room?

    Beecher E. Stallard:

    The secretary — under the constitution, the secretary and these people call each other brother and they know, and they go around.

    Potter Stewart:

    That’s fine.

    But what — but —

    Beecher E. Stallard:

    They’re making a report.

    They go in — we’ll say in the hospital room, and they talk and call each other by name and he said, “John, I think you ought to get Legal Counsel.”

    Potter Stewart:

    They say, “Brother, I think you ought to.”

    Beecher E. Stallard:

    Well, they do say “brother” because they are brothers and they call each other by name, first name.

    They said, “We think you ought to get Legal Counsel.”

    The brother can say, “I’ll handle my own case.”

    We don’t make any compulsion.

    Actually it’s in their regulations that no layman can advice him legally at all.

    No layman can advice them legally.

    They have to go to a lawyer.

    Potter Stewart:

    Now, who is it who goes to visit John in the hospital?

    Beecher E. Stallard:

    Well, it’s usually some — it has to be some — we have no regional investigators now that run around all over the country.

    It has to be somebody in that local lodge that goes.

    The secretary has to report it.

    He reports this accident.

    He gives the name FELA1 I believe.

    Beecher E. Stallard:

    He gives the name.

    Then, he perhaps calls on him because he knows him and he says, “I think you should employ a lawyer.

    You need a lawyer.”

    The man could tell him “Get out of my room.

    He needn’t come around.

    I’m not going to employ a lawyer.”

    That’s perfectly alright with us.

    Arthur J. Goldberg:

    Now, supposing (Inaudible)

    Beecher E. Stallard:

    There is a list of our regional counsel in the back of the book, a directory.

    There are 16 of them.

    He can go to any 16 that he wants to.

    Arthur J. Goldberg:

    This is countrywide or —

    Beecher E. Stallard:

    This is countrywide.

    In Virginia, taking —

    Arthur J. Goldberg:

    This is (Inaudible)

    Beecher E. Stallard:

    16 lawyers taking Virginia —

    Arthur J. Goldberg:

    Is that all?

    Beecher E. Stallard:

    That’s all, with exception of two or three lawyers in the state working perhaps under a regional counsel.

    He might get somebody to assist him on something, whether the association —

    Arthur J. Goldberg:

    (Inaudible)

    Beecher E. Stallard:

    16 regional lawyers.

    Arthur J. Goldberg:

    (Inaudible)

    Beecher E. Stallard:

    No, sir.

    I would say there are many competent lawyers but we are not aware of those.

    But this decree, if we picked half of the Bar of Richmond, we said to our membership, “One-half of the Bar of Richmond are capable.”

    This enjoins us —

    Arthur J. Goldberg:

    (Inaudible)

    Beecher E. Stallard:

    You would have to have — the president of the Brotherhood would have to investigate you to see your background and see if you’re really will represent him, that you were a capable lawyer.

    If you’ve got on the list, you could be one of the regional counsels.

    Arthur J. Goldberg:

    (Inaudible)

    Beecher E. Stallard:

    Then, you could not get on the list.

    Arthur J. Goldberg:

    (Inaudible)

    Beecher E. Stallard:

    No sir, because you might injure some of our seniority rights or you might do something we felt that you weren’t capable of.

    Arthur J. Goldberg:

    (Inaudible)

    Beecher E. Stallard:

    It couldn’t afford —

    Arthur J. Goldberg:

    (Inaudible)

    Beecher E. Stallard:

    I — I didn’t quite understand that, Mr. Justice Goldberg.

    Arthur J. Goldberg:

    Suppose you mean to say (Inaudible)

    Beecher E. Stallard:

    Well, of course —

    Arthur J. Goldberg:

    (Inaudible)

    Beecher E. Stallard:

    I must admit that these cases involve very serious accidents and they are remunerated but the principle here is this.

    Now, the basis of response to suit, they say, is the judicial prohibitions of the common law.

    The rules promulgated by the Supreme Court of Virginia defined in the practice law and the Canons of Ethics, and any other statutes, they say, that are pertinent thereto.

    Now, if the basis of this decree is common law, all we are doing that involves (Inaudible) which the central of it is established malicious intent.

    All we are doing is telling the brother, “Go and get a lawyer.”

    There’s nothing malicious about that at all.

    William J. Brennan, Jr.:

    May I ask, Mr. Stallard.

    Beecher E. Stallard:

    Yes?

    William J. Brennan, Jr.:

    To get back to Mr. Justice Harlan’s question, do I understand you to say that in each local, perhaps that’s not the proper description for the Brotherhood if you know what I mean that there is someone who — if there is an accident involving a member of the union has a duty to go see him?

    Beecher E. Stallard:

    The constitution, Section 20 — 91 provides, in every accident, the secretary of the lodge is supposed to make a written report of that accident.

    William J. Brennan, Jr.:

    So that’s — as part of that then is in his duty to go see the injured member?

    Beecher E. Stallard:

    It’s his duty under the constitution.

    William J. Brennan, Jr.:

    To see him.

    Alright.

    Now, when he goes to see him, I gather what you’ve answered to Justice Harlan that what he ordinarily tells him is, “You better get yourself a lawyer.”

    Beecher E. Stallard:

    Yes.

    William J. Brennan, Jr.:

    Is there any service that the Legal Aid Department renders that legal advice may be given by a lawyer other than one retained by the member?

    Beecher E. Stallard:

    The Legal Aid Department tells that, “We have examined their qualification.

    We think these men are capable.”

    William J. Brennan, Jr.:

    No, no I — what I’m — what I’m asking is, is there a lawyer on the staff of the Legal Aid Department who gives free advice as to whether or not he has a claim?

    Beecher E. Stallard:

    No sir.

    That was in 1930.

    That’s the Dworkin case in Ohio.

    The head of the Legal Aid Department was a lawyer Mr. McGregor, and he was doing just that.

    He was telling him and Ohio said that he should not do that.

    They changed the rules and regulations providing that the department cannot give them any information.

    William J. Brennan, Jr.:

    Alright.

    Now, then I understand you today at least all that the secretary in alignment does is to say to him, “Now that you suffered this accident, you consult a lawyer.”

    Beecher E. Stallard:

    Yes.

    William J. Brennan, Jr.:

    Is that it?

    Beecher E. Stallard:

    Yes.

    William J. Brennan, Jr.:

    And then, if — does the secretary then say, “If you need a lawyer, here’s a good name?”

    Beecher E. Stallard:

    They do give him specifically the name because the Illinois Court said they could specifically recommend a lawyer.

    William J. Brennan, Jr.:

    Alright, they do.

    Now —

    Beecher E. Stallard:

    Yes.

    William J. Brennan, Jr.:

    And who are the lawyers they recommend?

    Beecher E. Stallard:

    Well, I do not know.

    There are 16 of them.

    It perhaps would be one near to the person where he was injured.

    William J. Brennan, Jr.:

    Well —

    Beecher E. Stallard:

    It wouldn’t be one in California.

    William J. Brennan, Jr.:

    Wouldn’t it ordinarily be one of the 16 of these regional counsels?

    Beecher E. Stallard:

    It would be — ordinarily one of those 16 who they had looked into and found were capable of handling that —

    William J. Brennan, Jr.:

    I know but would it be the regional counsel for this which include the state in which the fellow was hospitalized or what?

    Beecher E. Stallard:

    Well, ordinarily it would be.

    William J. Brennan, Jr.:

    I mean, the — I think common sense would indicate it would be.

    Why is —

    Beecher E. Stallard:

    But — well, there’s a —

    William J. Brennan, Jr.:

    A fellow from New York go to California.

    Beecher E. Stallard:

    There’s a provision in the rules and regulations between the lawyer and the Brotherhood which was in existence in the Illinois State.

    It said that we cannot control our members.

    They can go to any regional counsel, do anything they want to.

    And in Virginia —

    William J. Brennan, Jr.:

    Are you saying that in fact, what the injured member is given is a list of all 16 regional counsels?

    Beecher E. Stallard:

    That’s printed in the directory.

    There’s a general printing in the directory and he calls their attention to those capable lawyers.

    Now, take Virginia in 1955 —

    Potter Stewart:

    But as Mr. Justice Brennan has suggested in —

    Beecher E. Stallard:

    Yes.

    Potter Stewart:

    — in Virginia there’s just — there’s one lawyer in that region isn’t there?

    Beecher E. Stallard:

    There’s one lawyer in Baltimore and there’s one lawyer in Atlanta.

    Potter Stewart:

    Yes.

    Beecher E. Stallard:

    And there’s been 15 cases handled in Virginia from 1955 through 1959, four years, 15 cases.

    One of those cases went to Atlanta.

    They went out from down in Danville, Virginia got on the train and went down to Atlanta because she perhaps felt better going to Atlanta than instead of going to Baltimore to see a regional counsel, or she could employ a local lawyer if she wants to.

    Potter Stewart:

    I understand that.

    But the recommendation is not of 16 lawyers.

    There — there are only 16 in the whole United States.

    Beecher E. Stallard:

    Well, I —

    Potter Stewart:

    Is that right?

    Beecher E. Stallard:

    — don’t think the — the record is clear on just that he said,“See this regional lawyer” because the rules and regulations says that he can’t tell them where to go.

    He can just say “We have a —

    Potter Stewart:

    He can recommend and suggest.

    Beecher E. Stallard:

    Suggest, that’s all.

    Potter Stewart:

    That’s what we’re talking about.

    Beecher E. Stallard:

    Now on page 37 of my brief I point out that the Bar here introduced witnesses, Mr. Clifford D. Olsen and apparently everybody knew him.

    Even the lawyer for the Bar called him Cliff.

    “Would you relate in your own words to the best of your recollection what if anything Mr. Klinkenberg and Mr. Ballou said to you at the time they contacted you at the hospital?”

    Arthur J. Goldberg:

    Now, how much is (Inaudible)

    Beecher E. Stallard:

    Mr. Klinkenberg, at that — be it, at that time, was regional investigator.

    We no longer have regional investigators.

    “Well they informed me that they were representing which I knew Ballou was of the Railroad Brotherhood Trainmen and advised me of my rights on the by-laws of the Brotherhood Trainmen.”

    They advised him under the by-laws that he could get count.

    Now, in the next question — and what else have he —

    (Inaudible)

    Beecher E. Stallard:

    Yes, sir.

    Because I’m trying to get the scenery of this picture.

    Do you — I suppose most of these lawyers on the list the 16 lawyers take these cases on contingent fees don’t they?

    Beecher E. Stallard:

    They can write their own contract there, Your Honor.

    But I mean what is the —

    Beecher E. Stallard:

    For the Illinois case the Brotherhood told them 25% they felt was sufficient.

    But now, the evidence shows they can charge anything that the client feels they should want to pay.

    But your original program as to —

    Beecher E. Stallard:

    Set 25?

    To set at 25% contingency.

    Beecher E. Stallard:

    Yes.

    Which is — now, since that system was abandoned, do you get reports from these lawyers as to what the fees they received —

    Beecher E. Stallard:

    Yes sir, we are in —

    — in particular cases?

    Beecher E. Stallard:

    No, I don’t think that’s in the record.

    I don’t believe that’s in the record what they’re charging.

    I do not know.

    I don’t think it’s in the record.

    Doesn’t the —

    Beecher E. Stallard:

    I —

    Does the Brotherhood keep records itself as to the fees that are —

    Beecher E. Stallard:

    Not now.

    The person in the railroad — I mean, the Brotherhood testified that some of them were charged in the third.

    He said he knew some of them were charged in the third in certain sections of the country.

    Beecher E. Stallard:

    Now, the important question here that this Mr. Olsen was asked, “And what else if anything were said to them?”

    “Well, they informed me that I could use Legal Aid if I so wanted to do so.”

    Then, he’s asked — then the lawyer asked his wife on that very point.

    I — and this is on 37 of my brief, I’m quoting from 164 of the record, “I’d like to ask one more question Mrs. Olsen,” and this is the Bar’s of lawyer, “You testified that Mr. Klinkenberg advised you that you could hire some other lawyer if you wanted to do it?”

    She says, “Yes.”

    And he said, “You can hire any lawyer.”

    Now, the president of the Railroad Brotherhood said likewise on the same page, 38.

    (Inaudible)

    Beecher E. Stallard:

    An active brother, Mr. Kennedy — Mr. Park Kennedy.

    Page 38 and we’re quoting from 63 of the record.

    He was asked, “And so the individual knows very little about his legal rights and so all we do is to notify them as to their legal rights and suggest that they confer with a competent qualified attorney for further handling.”

    “Yes.”

    “Now, then you advised him that he can have the services of your selected counsel whom you deem competent if he wants them.”

    “If he chooses to do so, yes sir.

    That is right.”

    “Now, in the serious cases, you advised him to get your counsel, don’t you?”

    “We suggest that he — he is interested, he can go to our counsel.

    He doesn’t necessarily have to use our counsel.”

    “But you advised him to that.”

    “If he wants to.

    We don’t force him to do it if that’s against his will.

    He can go to any counsel he choose to do so.”

    And that’s in the record.

    Hugo L. Black:

    Could you name (Inaudible)

    Beecher E. Stallard:

    That —

    Hugo L. Black:

    (Inaudible)

    Beecher E. Stallard:

    I could not name them all but I could give you —

    Hugo L. Black:

    Could you name them?

    Beecher E. Stallard:

    The president of the — he picks them out.

    The president, it’s on the constitution.

    Hugo L. Black:

    The National Union?

    Beecher E. Stallard:

    National Union, the Brotherhood has a right to select these counsels.

    Hugo L. Black:

    Is there ever an issue in the selection of the president?

    Beecher E. Stallard:

    No, I wouldn’t think so.

    I wouldn’t think that would have anything — because it’s set up under the Constitution.

    I wouldn’t think there would ever be an issue.

    I — the record doesn’t show, Mr. Justice Back.

    Hugo L. Black:

    You mean the record about it.

    Beecher E. Stallard:

    Would show that at all.

    So, how many of these cases (Inaudible) — how many of these cases were handled by lawyers other than the 16 that were on your list?

    Beecher E. Stallard:

    Are they’re no percentages in the record?

    The evidence started and stopped in 1961 so there are no percentages in the record.

    So we do not know.

    But I believe it would take judicial knowledge.

    In fact, there can be more than 15 people injured in Virginia but it’s about five million people.

    Have more than 16 people and they only got 15 accidents and in 1955 two people are hurt, 1958 — I mean 1956, eight people.

    And, the two people are hurt in 1955 are the same two people got hurt in 1956.

    So certainly, the lawyers of the Virginia are getting majority of the cases.

    If you took judicial knowledge of a state of five million people that they had more than 15 accidents in four years.

    Earl Warren:

    (Inaudible)

    Beecher E. Stallard:

    I would not know but hundreds of our members are injured and killed.

    The record show hundreds are injured and killed throughout the United States.

    Earl Warren:

    You have no knowledge of how many are handled through your — through your Legal Aid Department?

    Beecher E. Stallard:

    No, there are no percentages at all in the —

    Earl Warren:

    I’m not talking about percentages.

    I’m trying to find out the magnitude of this.

    About how many — about how many cases are filed a year?

    Beecher E. Stallard:

    I would not know Mr. Chief Justice.

    I would not know at all.

    The record does show only 15 cases handled in four years in the State of Virginia by Legal Counsel.

    Beecher E. Stallard:

    It’s on page 901 of the record.

    Hugo L. Black:

    How many were (Inaudible)

    Beecher E. Stallard:

    I do not know.

    Hugo L. Black:

    How did you know about this?

    Beecher E. Stallard:

    Well, I’ll tell you.

    On interrogatory by the Bar they asked us, “How many cases give the railroads of an engine on the dates?”

    and we listed the 15 cases.

    Now, they may have been consulted on all cases and the lawyer says, “I don’t think we got a case.”

    Coming specifically to this — the provision of this decree, we feel that this decree — the part of this decree that we referred to smothers all discussion between the Brotherhood and its members.

    We feel that group action is — and discussion is struck down by this decree.

    William J. Brennan, Jr.:

    (Inaudible) you couldn’t live with provisions C, D, and H —

    Beecher E. Stallard:

    Yes sir.

    William J. Brennan, Jr.:

    I understood the decree.

    Now, what you told us of the procedure puzzles me because C is from holding out lawyers selected by it as the only approved lawyers to aid the members of the family.

    You tell us that you do — don’t do that.

    Beecher E. Stallard:

    We do that.

    They’re the only approved lawyers.

    We list 16 in the book and they’re the only one who have been approved.

    We do just that.

    But we don’t force them to do that.

    We suggest it and if they don’t want to take those 16 —

    William J. Brennan, Jr.:

    (Inaudible) from informing any lawyer that an accident has occurred and furnishing the name and address of an injured or deceased member for the purpose of obtaining legal employment for such lawyer or in any other manner soliciting or encouraging such legal employment of the selected lawyers.

    You haven’t said anything to us about —

    Beecher E. Stallard:

    Well, I would give you an example.

    William J. Brennan, Jr.:

    The procedure involved informing any lawyer that an accident had occurred and furnishing name and address of the injured or deceased members.

    Beecher E. Stallard:

    I would give this example.

    This decree would prohibit a cousin.

    I recall interviewing a man who said that his cousin was killed in Bluefield, West Virginia.

    He was in Virginia and he said, “I told her a widow” because I felt it my duty.

    I was the first cousin, “That she should go to Baltimore and employ Mr. Bernard Savage.”

    Beecher E. Stallard:

    Under this decree, he could not tell his cousin’s wife to go and employ a lawyer.

    William J. Brennan, Jr.:

    Now, this is a — this enjoins you from informing any lawyer.

    Beecher E. Stallard:

    Any lawyer —

    William J. Brennan, Jr.:

    That accident has —

    Beecher E. Stallard:

    Well —

    William J. Brennan, Jr.:

    — occurred and giving the name and —

    Beecher E. Stallard:

    Suppose he had called a certain —

    William J. Brennan, Jr.:

    — name and address of the victim.

    Beecher E. Stallard:

    It does that.

    It prohibits him from calling up Mr. Bernard Savage in Baltimore and say, “My brother or my cousin was killed last night and his widow maybe up there to see you in a few days.

    Now, I want you to take care of her.”

    It prohibits him from informing that lawyer.

    He said “Who is your cousin?”

    “John Jones is my cousin” or “He’s my brother.”

    This enjoins him.

    Hugo L. Black:

    That would be an injunction (Inaudible)

    Beecher E. Stallard:

    We take the position under the Alabama case and my time has ran out — Alabama case that the Brotherhood and the member are the same because —

    Hugo L. Black:

    Did the injunction run against all the members of the Brotherhood?

    Beecher E. Stallard:

    It ran against the Brotherhood, agents, servants or any member acting in its behalf.

    And I will turnover to my distinguished colleague Mr. John Naughton.

    Earl Warren:

    Mr. Naughton.

    John J. Naughton:

    Mr. Chief Justice, may it please the Court.

    Mr. Stallard has discussed the general outline of the plan and the way in which it has been operating throughout the years.

    It seems to me that perhaps Mr. Stallard misspoke and that this Court is left with an impression that the local lodge officer does not recommend a specific lawyer.

    I think in fact that Mr. Stallard did not wish to tell you that.

    He wished to tell you what is in the record which is the exact opposite — the recommendations in all cases are recommendations of specific lawyers.

    Now —

    Potter Stewart:

    “Specific lawyers” — “a specific lawyer in any case” isn’t it or am I mistaken?

    John J. Naughton:

    Some of the appointments are appointments of firms.

    Potter Stewart:

    Yes, I understand that.

    John J. Naughton:

    And so in that case, it would be the firm name that would be giving us the recommendations.

    Potter Stewart:

    But not a choice of two or more but — but rather a recommendation of one lawyer or one firm in any given case or am I wrong?

    John J. Naughton:

    That is correct except in — in an exceptional circumstance perhaps where a secretary of a local lodge was familiar with two lawyers he might.

    So you could go to either one.

    On the other hand, if a secretary were to recommend a particular lawyer and the client were to say, “I don’t like that lawyer” then the secretary might recommend another lawyer reasonably close to the residence of the client.

    Potter Stewart:

    He would be one of these 16, probably?

    John J. Naughton:

    He would still be one of the 16.

    Potter Stewart:

    The next closest to the region, perhaps geographically.

    John J. Naughton:

    I would assume that it would be the next closest.

    The —

    Hugo L. Black:

    (Inaudible)

    John J. Naughton:

    The specific wording of the decree says “acting on its behalf.”

    Hugo L. Black:

    (Inaudible)

    John J. Naughton:

    I would say that it might apply in this respect in that we are asserting constitutional rights.

    And as a result of this decree being entered — the court ordered that the decree be served on all the secretaries of all the local lodges in Virginia.

    Now, these men of course are not lawyers and how they would interpret that decree is problematic.

    But it seems to me that they might well — upon being served by a sheriff with a copy of this decree assume that they could not recommend any lawyer in any circumstance.

    And in fact, although the Constitution of the Brotherhood suggest that this recommendation and referral should be made and suggest that in terms of duty.

    There is no evidence in this record or in any record that anything has been done as a disciplinary matter against any person who chooses not to do any of this.

    And in fact, as in most plans and labor organizations, we don’t approach 100% unanimity of referral.

    A great many of the local lodge officers refuse to fill out these forms, and that’s shown in this record when the president of the Brotherhood had to send out a circular saying, “Would you please fill out these forms.”

    Even in the cases where you don’t give the recommendation we use this information.

    We use it for statistical purpose.

    We go to Congress, and this record shows the Brotherhood going down to Congress as a result of what they learned in the operation of this plan.

    Earl Warren:

    Do you know what your statistic show as to the number of cases that are filed in a year throughout the country or throughout these various regions?

    John J. Naughton:

    I would not know it offhand, Your Honor.

    I would assume that it would run in the neighborhood of a 150-200 a year.

    Earl Warren:

    In the —

    John J. Naughton:

    By Legal Counsel.

    Earl Warren:

    In the country?

    John J. Naughton:

    In the country.

    Potter Stewart:

    It is by your — your Brotherhood?

    By members of —

    John J. Naughton:

    Yes.

    Potter Stewart:

    — your Brotherhood?

    And there are many —

    John J. Naughton:

    But —

    Potter Stewart:

    — other Brotherhoods?

    John J. Naughton:

    No not by members of our Brotherhood.

    By members of our Brotherhood, my guess would be that it would run somewhat around 500 that is that we would get roughly a third of the cases filed throughout the country.

    That is since —

    Earl Warren:

    I was asking the nationwide.

    John J. Naughton:

    Yes.

    Earl Warren:

    But you say now, there are about 500?

    John J. Naughton:

    That is by the members.

    I thought that you addressed your question as to how many were filed by our Legal Counsel.

    Earl Warren:

    Well, I would like to know that too.

    John J. Naughton:

    I would say that that was —

    Earl Warren:

    That would be about a third of those that were filed in the country?

    John J. Naughton:

    Right.

    Yes Your Honor.

    Earl Warren:

    (Inaudible)

    Potter Stewart:

    Filed in the country, excuse me.

    John J. Naughton:

    Yes.

    I would say approximately a third.

    I would also say, I do know this from having been in the Michigan case —

    Potter Stewart:

    Yes.

    John J. Naughton:

    And the evidence there shown that the percentage of the cases handled by Brotherhood counsel has declined since the Illinois decision changes and implementing that decision.

    Potter Stewart:

    How many FELA paid cases generally are filed every year?

    Do you have any idea?

    John J. Naughton:

    I would —

    Potter Stewart:

    Without the counsel.

    John J. Naughton:

    I would — I would suggest that — well, if it’s in the thousands my figures are wrong because the persons who most suffer the injuries and deaths are the switchmen and those are the people we represent.

    Potter Stewart:

    You have 500 though and there —

    John J. Naughton:

    I would —

    Potter Stewart:

    Say more or less by your — by your members and their —

    John J. Naughton:

    There should be at least a thousand I would assume filed.

    Potter Stewart:

    A few thousand, yes.

    John J. Naughton:

    And there are probably — in the last statistics, I remember something like 25,000 injuries a year and perhaps a 100-150 deaths.

    William J. Brennan, Jr.:

    Mr. Naughton, those actually are the implication.

    John J. Naughton:

    Yes.

    William J. Brennan, Jr.:

    There may be 25,000 injuries or deaths or whatever it may be — but only about 500 ever gets to litigation because the rest I gather settled along the way or just nothing’s done about it.

    Is that it?

    John J. Naughton:

    I would suppose they were settled and I — I would like to state my proposition here is the nature of the interest of the union members as derived from public policy stated in federal statutes.

    That we assert the right here for our local committee men to settle these minor personal injury cases for — under our rules — time lost alone without any other elements of damage as a part of our representation of the men in grievances and in matters arising out of the interpretation or application of collective bargaining.

    William J. Brennan, Jr.:

    Time lost alone, meaning on the wages lost?

    John J. Naughton:

    Only wages lost.

    William J. Brennan, Jr.:

    And other aspects of the damage claim from the injury, you don’t assert any —

    John J. Naughton:

    We have instructed our members not to assert that because then we are threading on the unauthorized practice of law and that is in the record.

    (Inaudible) and I’m reading from page 4 of the petition of the court.

    The court finds that the defendant Brotherhood, still adheres to the pattern and design of the plan formulated and implemented in 1930.

    It’s the old plan, which I understood Mr. Stallard to say that you’ve given up.

    John J. Naughton:

    I would say that that finding as made by the Court, is wholly without any prerogative evidence on which to base it.

    There is no evidence in the record.

    And as a matter of fact, if Your Honors will read the cases dealing with this matter, you will see that there have been many adjustments coming to the point where there is now a 25% fee charged as in the Illinois proceeding which was at that time set by the president of the Brotherhood.

    Since that time the president of the Brotherhood has specifically instructed the counsel.

    They are relieved from that setting and they may charge what they feel is a fair charge under the circumstances.

    When I read that thing to mean was if the overall effectiveness is to go down as to define the recommendation for business or channel this kind of business, if they had another lawyer?

    John J. Naughton:

    I would say that —

    Does the record support that?

    John J. Naughton:

    That the record would not support that because, as Mr. Stallard stated, there are no figures and no percentages given in this record.

    What was done in this record was the Association of American Railroads picked one case in each section of the country and then the Virginia Bar took the deposition of that man.

    I assume that the Association picked the case which most flagrantly showed the abuses which they claimed.

    And yet, it seems that on this record there are no abuses shown in a great number of those cases.

    And, as a matter fact, the Virginia Bar in its brief concedes in four or five of the cases that there are no abuses shown.

    The —

    Tom C. Clark:

    (Inaudible) any payment to the Legal Aid Bureau from the lawyer or out of his 25%?

    John J. Naughton:

    In the 1930 plan, the ch — the fee was 20%.

    Tom C. Clark:

    20?

    John J. Naughton:

    And 5% of that was paid to the Brotherhood to finance the investigation service performed by the Brotherhood.

    Tom C. Clark:

    There’s nothing in the record you say that support that as being presently owed?

    John J. Naughton:

    Oh no, there is absolutely nothing.

    As a matter fact, the record affirmatively shows the opposite.

    There are no payments made to the Brotherhood.

    William J. Brennan, Jr.:

    Do you say the record now is that the lawyer charges what he wants and keeps it all?

    John J. Naughton:

    Yes, there is some point made of President W.P. Kennedy stating that, in circumstances where a lawyer would charge 50%, he might remove him but I don’t see that as being a —

    Hugo L. Black:

    Is that from recommended list?

    John J. Naughton:

    From the recommended list.

    I don’t see that as being any sort of a setting up of fee.

    As a matter of fact, I think your Court is familiar that New York held that a 50% fee is an unconscionable fee.

    Byron R. White:

    But, no longer any payments by lawyers to the Brotherhood?

    John J. Naughton:

    That’s correct, nor any payments by lawyers to any Brotherhood members in connection with the procurement of the case.

    It’s fully in accord with the Illinois decision.

    William J. Brennan, Jr.:

    Would you mind — would you mind just detailing for me, if you can, briefly what is the conduct that you say is constitutionally protected which this decree enjoined?

    John J. Naughton:

    Briefly, I would say that the constitutionally protected is the actions and the speech by the local lodge officer when he makes an unsolicited call upon an injured person or upon a deceased person’s widow both of them having suffered the injury or the death solely in railroad employment, and he states to that person, that prospective client, that “I am here to tell you that it is the policy of the Brotherhood to advise you and to recommend that you retain a lawyer.

    You may retain your own lawyer but we strongly recommend that you retain the Legal Counsel appointed for this area who is Mr. X.”

    We feel that, under those circumstances, this is a mere referral without compensation and, until these Brotherhood cases came along, we had never understood and I think the Bar has never understood that such referral is in any respect unethical.

    (Inaudible)

    John J. Naughton:

    We feel that both the freedom of speech and freedom of association, as stated in the First Amendment, protects this.

    (Inaudible)

    John J. Naughton:

    Yes.

    (Inaudible)

    John J. Naughton:

    Yes, we do claim that.

    The reason I didn’t state that in my answer to Mr. Justice Brennan because he asked, “What do we do in regard to the particular injured person?

    “Now, insofar as this case —

    Tom C. Clark:

    (Inaudible) counsel is not recommended by you?

    John J. Naughton:

    Yes.

    Tom C. Clark:

    (Inaudible)

    John J. Naughton:

    That had been the practice and of course now you will understand as Mr. Stallard stated that we are not making investigations within a great volume that we had done previously.

    This had come to the point where it is economically almost impossible for the union to continue to finance this.

    You realize the great volume of injuries every year 25,000 injuries to investigate a year with — is almost an intolerable burden for this union to assume, especially in the circumstances that it is now in with the national rules dispute going on.

    Hugo L. Black:

    You have an $85,000 budget, I understood.

    John J. Naughton:

    No, that is not correct.

    We spent $85,000 in 19 — in part of 1961, as the record shows.

    We didn’t have any budget, and that was only for eight months in 1961 so that the cost to the Brotherhood ran approximately $10,000 to $11,000 a month.

    Hugo L. Black:

    Now, what would that encompass?

    What type of people would that in — is that salary or —

    John J. Naughton:

    That is primarily salaries and transportation.

    The department maintained in Cleveland had a chief clerk and several stenographers.

    (Inaudible) in the records where there are (Inaudible) roughly, what the amount of the take of the lawyers is on the 500 cases, roughly would you say would be with the Brotherhood?

    John J. Naughton:

    I didn’t say that 500 case.

    I said approximately 150 cases.

    500 cases were filed on behalf of Brotherhood members in a year, I would suggest.

    Earl Warren:

    (Inaudible) by your lawyers?

    John J. Naughton:

    I would assume that the average settlement throughout the country would run approximately $8,000-$10,000 a case in cases handled by Brotherhood counsel.

    So that their fee, if they charge as 25%, would run to $2,000-$2,500 a case and I would suggest that in — the American Bar suggest there’s no lack of competition among lawyers for these cases, and I would agree with them, provided, they say there is no lack of competition among lawyers for the very serious injury cases.

    There is a definite lack of competition among lawyers, among lawyers who are willing to handle these smaller cases.

    The —

    Earl Warren:

    Mr. Naughton, may I ask you this.

    Does the broad choice of forum by the injured person, under this Act, contribute to the small number of regional counsel that you have?

    Earl Warren:

    In other words, as I understand it, the injured person can file in the place where the accident occurred.

    He can file in any court in any state through which the railroad runs or he may file a maybe still broader jurisdiction.

    I don’t know, but at least that is true, is it not?

    John J. Naughton:

    Yes, Your Honor.

    I would say that there is at least an indirect relationship and probably a direct relationship.

    The Illinois case specifically states that the counsels are located in what are deemed high verdict areas.

    The trainmen of course, in making their plan effective wish to obtain the most compensation they possibly can for their injured members.

    And for that reason I — I’m certain that there is a Legal Counsel appointed who has offices in Chicago and there is none who is appointed where his office is in Indiana, the general feeling being that Indiana is a lower verdict area than Chicago.

    Potter Stewart:

    That could be both cause and effect, I suppose.

    John J. Naughton:

    Yes sir.

    Earl Warren:

    The statute gives that right.

    John J. Naughton:

    The statute gives that right and the trainmen obtain the statute, I think, the record shows.

    Thank you.

    Hugo L. Black:

    (Inaudible) state or otherwise that the Bar (Inaudible) giving advice to injured persons within a certain period after that (Inaudible)

    John J. Naughton:

    The only state I know that has such a statute is Minnesota where there is a 30-day period in which a contract may not be signed releasing a client.

    There is no provision in that statute.

    The claimant may or may not advise the injured person that he should not go to the Brotherhood counsel or that he should not go to any counsel or that a particular counsel, I’m sure, will see you and of course you don’t want to be associated with a person like him.

    Hugo L. Black:

    Are there any statutes, so far as you know, which bar who operated insurance companies from recommending lawyers or supplying lawyers?

    John J. Naughton:

    here are none that I —

    Hugo L. Black:

    People who filed suits.

    John J. Naughton:

    There are no statutes that I know that bar such.

    I understand that two years ago there were such statutes in some instances.

    Hugo L. Black:

    Is there any reference to that kind of business in this particular Virginia Law, either including or excluding?

    John J. Naughton:

    As I understand the — this case, the Virginia Bar doesn’t rely on any provisions of Virginia Statutes whatsoever.

    Hugo L. Black:

    The common law.

    John J. Naughton:

    They rely on the common law.

    Hugo L. Black:

    But they do have some statute (Inaudible)

    John J. Naughton:

    Yes, they have the statute struck down in the Button case.

    Hugo L. Black:

    (Inaudible) covering this kind of activity?

    John J. Naughton:

    Well, as I understand the Button (Voice Overlap) —

    Hugo L. Black:

    (Inaudible) insofar?

    John J. Naughton:

    I don’t believe so Your Honor, no.

    Potter Stewart:

    That was the (Inaudible)

    John J. Naughton:

    No, they are not but that statute, I think, made a distinction between those with a pecuniary interest and those without.

    Hugo L. Black:

    The rules involved the rules in the Supreme Court?

    John J. Naughton:

    The rules of the Supreme Court are not involved and that the Brotherhood of course is not subject to the Canons of Ethics, and the rules defining the practice of law clearly do not cover this situation.

    Earl Warren:

    Mr. Bowles.

    Aubrey R. Bowles, Jr.:

    Mr. Chief Justice and Justices.

    Before I forget it, in the brief time before lunch I would like you to look at page 15 of this (Inaudible) brief.

    I believe that’s what the printers called it, and you will see the answers to you figures the letters that were furnished us by the Brotherhood.

    Byron R. White:

    What brief is that?

    Aubrey R. Bowles, Jr.:

    On page 15.

    Byron R. White:

    What brief?

    Aubrey R. Bowles, Jr.:

    This one, this yellow.

    At the center of the page, you will see that the book show that in 1955, which is the latest information they gave us, the gross settlements are $8,688,409 and the 25% fee to the 16 lawyers was $2,172,102.25.

    Now, if Your Honors please, there are two questions which I think in about two minutes, I can briefly dispose of that are collateral in a sense.

    The Virginia Bar has conceded in its brief that the Association of American Railroads did make available to us a part of the evidential material in this case, for which we are indeed most grateful.

    Hugo L. Black:

    (Inaudible)

    Aubrey R. Bowles, Jr.:

    They did make available to us certain evidentiary material.

    The case, however, is not a contest between the railroads and labor, as has been animated to you in the brief of the petitioner.

    It is solely and only, I submit, an effort on the part of the Bar of Virginia to preserve its own integrity.

    You see, under this plan, we have never had a lawyer in the State of Virginia which, in the opinion of the Brotherhood, was competent to handle an FELA case which, as Your Honors as — will recall, certainly with the assistance given by the court, is about the easiest personal injury case that there is to try.

    It is solely an effort on the part of the Bar of Virginia, as I stated, to preserve its integrity.

    Now, there’s another point.

    The petitioner filed a motion here to require the respondent to pay the cost, well it nearly, of all cross designations that we made for printing.

    Now, if Your Honors please, we point out merely the fact that, had we not done so, this printed record would not have shown you one single fact that would intercalate what the true situation is.

    The very uplifting of all of the glossary matter that would paint them in shining fashion and shining armor, being wholly and, now, true instantly interested in the injured member.1

    That is not a fact, I submit, as the record will show.

    If I have the time before lunch, I would like to briefly undertake to explain to you what this decree is and what its basis is.

    It is admitted here in the answer that these practices and these illegal practices were continued in Virginia and everywhere else all over the United States up to the magic date of April 1, 1959 a very appropriate selection in the way of date because that happens to be April Fool’s day.

    Aubrey R. Bowles, Jr.:

    They admitted that they did this prior to April 1, that —

    (Inaudible)