United Mine Workers of America, District 12 v. Illinois Bar Association

PETITIONER:United Mine Workers of America, District 12
RESPONDENT:Illinois Bar Association
LOCATION:Seward High School

DOCKET NO.: 33
DECIDED BY: Warren Court (1967-1969)
LOWER COURT:

CITATION: 389 US 217 (1967)
ARGUED: Oct 17, 1967
DECIDED: Dec 05, 1967

Facts of the case

Question

Audio Transcription for Oral Argument – October 17, 1967 in United Mine Workers of America, District 12 v. Illinois Bar Association

Earl Warren:

Number 12, United Mine Workers of America, District 12, Petitioner, versus Illinois State Bar Association.

Mr. Combs.

Harrison Combs:

Mr. Chief Justice, may it please the Court.

The principal question involved in this case is whether or not that a State Court decree conflicts with rights of coal miners, members of labor union and it holds that such labor union is engaged in the unauthorized practice of law by employing an attorney on a salary basis to represent it’s members with respect to claims arising under the state’s Workmen’s Compensation Law.

The Bar Association of the State of Illinois filed a complaint in the Sangamon Circuit Court on behalf of it’s committee on unauthorized practice of law alleging that for many years District 12, United Mine Workers had been engaged in the unauthorized practice of law in that it involved an attorney, a duly licensed attorney, State of Illinois to represent its members on workmen’s compensation claims who were injured in the course of their employment.

District 12 filed an answer admitting that it did employ such an attorney by stating that under the First and Fourteenth Amendments of the Constitution of the United States that it had a right to do this.

It denied that it had engaged at time in the unauthorized practice of law.

The Court granted a sovereign decree in the Circuit Court in Sangamon County and joining the continuation of this legal aid claim.

District 12, United Mine Workers appealed to the Supreme Court of Illinois and this Court affirmed the decree of the Sangamon Circuit Court.

The legal aid plan in question here was set up by a convention of District 12, United Mine Workers in 1913 at a convention held at Peoria, Illinois.

The convention consisted of delegates from the various local unions and various coal mines in the state of Illinois.

Now District 12 is a branch of United Mine Workers of America, a national labor organization.

It’s composed of some 14,000 members; 8,500 of these members are working members and some 5,500 are retired members.

The legal aid plan in question here was set up as I say in 1913.

It was set up because the delegates, the coal miners at the convention in their discussions said that the claims that they were filing in the state Courts with connection with their injuries were being mishandled.

I think the words juggled were used and that even the claims were not mishandled that it cost the injured employee approximately 50, from 40% to 50% of the rewards given and attorney fees and in cost to the Court.

Potter Stewart:

That was for the day, Workmen’s Compensation Act 1913.

Harrison Combs:

Workmen’s compensation solely.

Potter Stewart:

But it was before the days workmen’s compensation wasn’t it?

Harrison Combs:

Well it was in fact that contemporaneously worth it, I think that the workmen’s compensation law was passed in 1912, if I’m not mistaken and this occurred in 1913.

Now frankly Your Honor that the discussions merged in the gut of the need of a Workmen’s Compensation Act as well as problem they we are having of recovering any damage since that common law.

Potter Stewart:

Since I have already interrupted you, you tell me what is District 12, is that the statewide –?

Harrison Combs:

Yes Your Honor, District 12 is branch of national organization, administrative purposes and this jurisdiction is in the State of Illinois and Iowa.

Potter Stewart:

Throughout the state of Illinois and Iowa you say?

Harrison Combs:

Yes.

But the Compensation Act and the legal aid plan is confined here to the State of Illinois.

Potter Stewart:

Is this, does the UMW have the same plans or similar plans in other states?

Harrison Combs:

Yes Your Honor.

Potter Stewart:

How many other states?

Harrison Combs:

I would say they operate in 28 states and I would say that over half of them have some plan of similar nature to this.

With a salary of employee and employer.

Harrison Combs:

Yes Your Honor.

Have run a file on the organized bar in many other states?

Harrison Combs:

Yes Your Honor it is in the record but I can answer because it was proceeding, official proceedings, we have had cases, I have in Kentucky and in West Virginia and some discussion in Ohio.

All of these cases were settled to the satisfaction of the local bar associations and committees, that there was no Court action in any of these cases because they settled before that, they were satisfied with our explanation of —

Did you settle by making any changes in your setup?

Harrison Combs:

In West Virginia there were some slight changes made.

But I think the heart of the matter is — would still be this question of paying your salary here.

Does it give the services exclusively Mr. Combs to this work or does he have additional plan?

Harrison Combs:

He has additional work, because in no instance that I know of is the attorney involved solely practicing compensation law.

As a matter of fact it’s proven to be more satisfactory to have an attorney in the general practice of law in the community where he is to handle these cases.

Byron R. White:

Well this one is — member of the state legislature, isn’t it?

Harrison Combs:

This one is the member of the state Senate and perhaps some other practice (Inaudible).

Byron R. White:

of the union or he just paid his fees?

Harrison Combs:

We just — he’s paid on a salary basis Your Honor and —

Byron R. White:

(Inaudible)

Harrison Combs:

Well I don’t know how you’d make the distinction.

I suppose he would consider it to be a retainer.

We call it a salary.

Byron R. White:

Is he subject to your direction?

Harrison Combs:

He is not subject to the direction and control of the union in any respect with the exception —

Byron R. White:

You may say you don’t exercise it but is he subject to it?

Harrison Combs:

He is not.

His letter of employment states specifically that he is not and I’ll read that in a few minutes, we did not —

Byron R. White:

Why do you call him an employee?

Harrison Combs:

Well, the terminology that is been used just simple been that they pay him a salary so much, so I’m not making a point in the distinction on what he does, I don’t know about what he calls it, but —

Byron R. White:

The Union has a lot of employees I –.

Harrison Combs:

Oh yes.

Byron R. White:

Do you pay taxes on this man?

Harrison Combs:

I think in some of them they do and some of them they don’t.

Harrison Combs:

I think they arrangement sometimes, they’re not included I might say this.

For our purposes of pensions and for group health these attorneys are not included as employees, because they are considered to be on a fee basis.

I’d like to read the terms of employment if you like.

Byron R. White:

No.

Does the Illinois compensation system provide for an award a fees to an attorney representing an injured employee?

Harrison Combs:

Only in this respect Your Honor.

If there was a controversy with reference to the fee they will set an award and yes there is a controversy on whether or not it was unreasonable they would act on that, but all of the awards or fees are not made by the commission, it is made for private contract between the claimant and the attorney.

Potter Stewart:

Well in this cases where it’s made by the commission, does this attorney keep the fee in addition to the salary?

Harrison Combs:

Not if — the attorney involved here, no sir.

Potter Stewart:

What happens to the fee?

Harrison Combs:

I don’t see where there would be a fee awarded, there’s no claim ever entered for a fee.

There would be no occasion for such an instance to arise, because his sole compensation is to be according to his employment contract, his salary is paid by the union.

And the recipient receives the entire amount of the award, no cost whatsoever deducted.

And I think it’s pertinent, since Mr. Justice White asked the question, that in the initial setup of this legal aid plan in 1913, the resolution authorizing the District Executive Board to setup a legal department and to employ a competent attorney to represent these members and these workmen’s compensation claims.

The resolution itself specified that this was to be available to the claimant if he wanted, if he didn’t — if he wanted it and if he did not want this then he could get counsel of his own choosing and the department would be available to that counsel for any investigative work for getting ready to file that counsel, the man chose that was in the original employment authorization by the men who were at the convention.

Byron R. White:

But you don’t offer to pay any of the expenses of attorneys that some member may hire rather than this man in the legal department.

Harrison Combs:

That is correct, with this exception, he is not paid, that’s right.

The question is, that’s right, but under this plan Your Honor the local unions designate particular persons in the local union to help this man who is injured to help him get his information and to help him (Inaudible).

Now this is agreeable to that attorney at the cost of the union and that was provided in the initial employment.

Now the current case rules 1963 —

Hugo L. Black:

Does it bother you then stating (Inaudible) and then here and there something about it, does it bother you to say it briefly as possible that the, exactly what is your organization and how it functions?

Harrison Combs:

Well I’d be happy to.

United Mine Workers of America is a Labor organization setup in 1809.

It has jurisdiction throughout the bituminous and Anthracite Coal Fields in United States and Canada.

I suppose it is close to the between 75% or 80% of the coal miners belonged to the United Mine Workers.

And they bargained in the coal industry through districts we call them and District 12 is such a district.

These districts are administrative divisions of United Mine Workers for purposes of administrating the contracts and the constitution and the laws et cetera.

And this District 12 is a division of United Mine Workers of America labor organization and the income of the district involved here comes from the dues of the members of that district and the international union.

Hugo L. Black:

Is that all there?

Harrison Combs:

That’s about the pertinent point I would say, it’s un-incorporated —

Potter Stewart:

This plan of paying a salaried lawyer, hiring a salaried lawyer and it runs back in 1913 as you tell.

Harrison Combs:

Yes Your Honor.

Potter Stewart:

How long has that actually been in existence, this particular plan?

Harrison Combs:

Since that time.

Potter Stewart:

All the time since 1913.

Harrison Combs:

Yes, now the current attorney was involved as a result of a resolution of 1913, now here is this important contract I like to read it, it is very brief.

Hugo L. Black:

What contract is that?

Harrison Combs:

This is the contract between the current attorney who represents that Workman’s compensation Department in District 12 that’s involved here, this attorney is involved in this case.

And this is in private contract made by District 12 Executive Board reserved to the resolution of 1913 and is on page 19 of the record here and it reads as follows, it’s dated 26th of September 1963.

The District Executive board has authorized the undersigned to make arrangements with you to handle as attorney, compensation cases for District 12 and their dependence to plead and desire your services.

Hugo L. Black:

Is that compensation only?

Harrison Combs:

Compensation only.

If accepted by you the salary will be $12,400 per year.

You will also be allowed and paid reasonable expenses.

It will be your duty to see to it so far as possible with the help of the secretaries in the Springfield and West Frankfort offices and Offices of local unions that no member or dependent loses his rights under the act by reason of failure to avail himself, avail in time.

Also to represent him before the commission if he desires your services, if he is represented by other counsel you will immediately turn over his file to such counsel.

You will receive no further instructions or directions and have no interference from the district nor from any officer and your obligations and relations will be too and with only the several persons you represent.

This arrangement is (Inaudible) and acting President.

Now that is the employment of this counsel and in addition to the services of this counsel and by the way he is a member of the State Bar Association of Illinois, he is a member of the American Bar association and he is a duly licensed attorney and as Mr. Justice Stewart pointed out, he is a Senator in the State of Illinois.

Now in addition to the services of the attorney, the Union Secretaries in the offices at West Frankfort and in Springfield are available to this attorney to assist him in the filing of these claims and getting the material that’s necessary for these cases.

This attorney meets about twice a week in these offices, he is available for conferences with any injured claimant.

The claims that are filed here are filed on forms that are distributed to the local unions and with the assistance of members of that local union to the injured claimant.

And this form provides the necessary information about what kind of injury he has, when it occurred what medical records that he may have and what the controversy is about.

Whether or not that he is paid what he thinks is due or whether or not that his compensation has been cut off before it should be cut off and whatever the dispute is between the attorney and I mean between the claimant and the coal company involved.

Abe Fortas:

Any disciplinary proceedings been brought against the lawyer himself?

Harrison Combs:

Yes, Your Honor he is included in this only this complaint, he is included because under canons 47 and 35 that he is lending his assistance, he is charged with many assistants with the district and the unauthorized pact of law in that respect.

Now there has been no complaints filed by any other person except this Illinois bar Association, there is none of the members complaining, there’s nobody had a claim that’s complaining at all, it just simply complained in the bar association.

Hugo L. Black:

No accusation that he did not faithfully represent his clients.

Harrison Combs:

No Your Honor, none whatsoever.

Now as I said —

Potter Stewart:

His representation of the members of District 12 is limited exclusively to workmen’s compensation claim.

Harrison Combs:

Yes Your Honor.

Potter Stewart:

I mean other words he doesn’t get divorces for them or represent them in criminal charges or anything else, write their wills or —

Harrison Combs:

No Your Honor they –

Potter Stewart:

Help them in selling their houses or buying their houses.

Harrison Combs:

No, his contract is solely for workmen’s compensation.

Now with respect to other practice in his deposition which is the matter of this record here, the questions were asked if as a result of his employment, the attention that that he got, did he get more involvement among the coal miners and he said very little — he might have represented one or two and he didn’t remember that.

But as far as the union and the contract is concerned no, that’s all he represents them and it was one exception that he said that some of these officers of the district that they should ask him some legal question or something like that he would be glad to give it but he didn’t practice, his contract was exclusively for workmen’s compensation.

Potter Stewart:

Does the record show whether he has an office, his own a law office.

Harrison Combs:

Yes he does, he did have an office, — yes.

Potter Stewart:

Not on the property of the District –.

Harrison Combs:

That’s right, he doesn’t have an office on the property as such, he has available space to meet with these claimants in the Springfield office and in the office of West Frankfort Illinois.

Potter Stewart:

What precisely is your constitutional claim?

Harrison Combs:

What I didn’t, I beg your pardon.

Potter Stewart:

What precisely is your constitutional claim?

Harrison Combs:

Our constitution of claim is precisely representing Brotherhood claim that these coal miners had right to meet and to consult and advice with each other on what they thought would be their best protection under this workman’s compensation act, and in this particular case and in doing that that they had a right to agree through their union which they had traditionally depended upon to employ an attorney or to instruct the union to employ one in the system of Compensation Act.

We think that this case falls squarely under the Brotherhood of Railroad Trainmen’s case decided by this court.

Now if Your Honor would like the Supreme Court of Illinois distinguished between the Trainmen case and this case at bar here by saying that in the Trainman case the question of the union paying, the attorney did not come up and it wasn’t decided by this court and it wasn’t because they worked out another plan with relation plan.

And the Illinois court the sole objection they had in this legal aid plan was just simply that the union had no right to pay this man on salary basis and that they restricted now from having any financial connections between the union and the attorney employed.

They wanted the claimant to pay back and we say that that is not necessary because after all if they have this constitutional right, they have a right to make it effective in a lot of these —

Potter Stewart:

Let’s see Mr. Combs’s that in other words the Supreme Court of Illinois has said you had a service limited to referral to this particular lawyer of your members.

Harrison Combs:

That’s right.

Potter Stewart:

That would be all right.

Harrison Combs:

That’s right.

Potter Stewart:

But the wise thing is as they saw it was simply that you paid him a salary.

Harrison Combs:

That’s right.

Potter Stewart:

For performing the services for the members.

Harrison Combs:

That’s right.

Let me read what it said, just very short.

Here’s what they condemn this legal aid plan for, you have the court’s words.

Harrison Combs:

The lawyer is not paid for any services by the client.

His salary is paid by the association and because the interests of the employer and the client, the interest of the union collectively may extend beyond the interest of the injured member.

Now, our answer to that Mr. Justice Brennan is just simply this, that the testimony here shows conclusively that a claim, when it comes up that the claimant himself makes the determination on whether that will be settled or whether that will go on to hearing and the awards is incomplete sole control.

Now, there couldn’t be any conflict between the union’s interest and the man’s interests, in the first place the interest came up for reason of these claims and the authorizations, the contract of employment, resolution setting up this department in 1913 specifically provides that this claimant is going to be in control of this lawsuit on what he wants to do of life.

And we think that the court’s speculation here — there’s absolutely no evidence in this record but at anytime that there’s been an abuse of this representation at all, that at any time there has been an abuse of this because of a conflict between the union’s interest and the possible interests of the client.

And again for instance that in the future if this legal aid plan contend that first thing you know that they’re getting people to get divorces for them and they would be doing this and doing that, well of course you can speculate almost anything but it’s purely speculation, there’s not a cental of evidence in this record that anything occurred here it wasn’t to the satisfaction of these employees here, there’s no complaints at all about their services, about the way their awards are settled to them and I am not saying this that in regard to that when they want this client to pay this legal fee, they’re talking in terms here of this record was about five years in excess of $2 million and under the record here in the evidence, there would be at least 20% of that reward will go to the legal fees as such if it was with private lawyers together with the cause there and the Illinois Supreme Court conceded, it does a great benefit to these coal miner to arrange it independently.

Hugo L. Black:

Would you mind telling me what constitutional provision you say involved at this stage from client lawyers take fees rather than salary?

Harrison Combs:

Well, Your Honor —

Hugo L. Black:

That are constitutional.

Harrison Combs:

We are saying that under the First and Fourteenth Amendments to the constitution that these men have right to make that type of arraignment with the lawyer if they wanted.

We are saying that the men have a right to do that and the State does have the right to bridge that right.

Hugo L. Black:

Why wouldn’t?

Harrison Combs:

Well, for the simple reason —

Byron R. White:

What cases are you relying?

Harrison Combs:

I’m relying on the Brotherhood of Railroad Trainmen case.

Hugo L. Black:

What do those cases stem on?

Harrison Combs:

Those cases stemmed from the First and the Fourteenth Amendments to the constitution of United States and but —

Hugo L. Black:

Do they not stem from the Fifth Amendment?

Harrison Combs:

First and Fourteenth.

Hugo L. Black:

First and Fourteenth Amendment.

Harrison Combs:

Yes, Your Honor.

Hugo L. Black:

The right to seek freely and the right to —

Harrison Combs:

Right.

Hugo L. Black:

Now which one of those, do you claim comes in?

Harrison Combs:

The first —

Hugo L. Black:

Which one of the seven divisions –?

Harrison Combs:

The right to assemble and to counsel among each other and to secure the rights as in Trainmen now specifically —

Hugo L. Black:

Right to assemble —

Harrison Combs:

Yeah and to counsel and advice and just select their spokesman to secure these rights, these legal rights if they have underneath workmen’s compensation laws in this —

Hugo L. Black:

Did the states in determining the policy decides legal cases that he handled.

Harrison Combs:

Well, this court in Button held that the NAACP had a right to handle litigation of its members on these Civil Rights cases and it further held that they had a right to do that by paying the fees of those lawyers and the State had all right to restrict that —

Hugo L. Black:

That’s the case you relied?

Harrison Combs:

Yes, together with the Brotherhood of Railroad Trainmen cases which pointed out in terms that in England the unions paid the lawyers a practice which this Court approved in Button, that’s in the Trainmen case, so we think that it becomes squarely within those two cases, yes right.

(Inaudible)

Harrison Combs:

Well, I think Your Honor there would be a distinction in this but that would be for commercial purposes, proper motives and I think the question might be different than this case is.

There is no question here that union getting under these bonds and getting under benefit except as the Supreme Court of Illinois pointed out that the union had an active continuing interest and saying that these members of theirs, the employees who were injured got their benefits under this act, Supreme Court admitted that and stated that.

(Inaudible) .

Harrison Combs:

Yes, of course we feel like this Court said in the NAACP case and in Brotherhood case that because they labeled it that, that didn’t allow them to infringe on these other rights with these people and we think they had (Inaudible).

Potter Stewart:

Well they had the right to hire somebody who wasn’t a lawyer?

Harrison Combs:

No Your Honor certainly not we don’t contend that in this right.

Potter Stewart:

Constitutional right, I should think it’s constitutional right, the state has no power to regulate it.

Harrison Combs:

I think not, this practice of law that you’re talking about, they’re not practicing law, they’re hiring a lawyer to represent them, they’re going into this phase of anybody’s right to hire a lawyer to represent.

Potter Stewart:

Well, as I had understood the theory of the Illinois Supreme Court and the theory of the charges against you in the Courts of Illinois it was that this unincorporated association was the unauthorized practice of law itself just as a bank can be under some —

Harrison Combs:

Basically that’s solely on the fact that the employee doesn’t turn it outside but otherwise —

Potter Stewart:

Yeah, but that was the theory wasn’t it?

Harrison Combs:

Yes, because the attorney declined —

Potter Stewart:

I don’t, so then it’s not your position I guess perhaps I misunderstood it, I thought that your position was that your association had a constitutional right to choose whomever you wanted to represent your members in claims against the claims of the industrial commission.

Harrison Combs:

I think under these circumstances I’m saying that it allows (Inaudible) lawyer under this —

Potter Stewart:

What if you planned to have a lawyer.

Harrison Combs:

Well I could plan to a lawyer because you’re trying to get their rights under worker compensations stats that is a practice of law, that is the practice of law, everyone is trying to practice law.

But they want to be, they want to be able to get a lawyer on these terms when they need one.

Potter Stewart:

I don’t quite understand your argument if you think that it has to be confined to their hiring a lawyer I should think that this constitutional right freedom to hire anybody they want to represent them they could, they could if they wanted they want to hire a plumber or another coal miner.

Harrison Combs:

I am not arguing that I don’t it’s —

Potter Stewart:

This barred lawyer.

Harrison Combs:

No, I’m not arguing that this lawyer —

Potter Stewart:

What about the bar exam?

Harrison Combs:

Our argument is just simply this that this man was licensed for the State of Illinois, he was the member of the America Bar Association and this man had a right under those laws to select this man to represent.

Potter Stewart:

No and that right derives you say from where?

Harrison Combs:

From the First Amendment to the constitution of United States together with the Fourteenth as enunciated by this Court in the Brotherhood and Railroad Trainmen case.

Abe Fortas:

Mr. Combs is the, UMW, is United Corporate Association, is it right?

Harrison Combs:

Yes Your Honor.

Abe Fortas:

And I suppose your theory as of the members of the UMW that the miners operating through this United Corporate Association in fact got together and hired a lawyer for this purpose.

Harrison Combs:

Exactly.

Abe Fortas:

Now does the UMW have welfare program.

Harrison Combs:

Yes Your Honor.

Abe Fortas:

Does the amount collected by the individual and the worker’s compensation have any bearing upon the UMW welfare program.

Harrison Combs:

Yes it does.

Abe Fortas:

Could you tell us very briefly how that happens?

Harrison Combs:

Well, it happens in this way, the amounts awarded to an injured employee or to one of his beneficiaries is taken into account on the benefits that he will receive from the welfare plan.

Abe Fortas:

Right.

Harrison Combs:

The more he receives the less welfare will be out and more they will have for their funds.

Abe Fortas:

So that union has as, regarded as an entity has an interest and apart of from its benevolent interest in the welfare of the man and in saying that they prosecute their workmen’s compensation claims.

Harrison Combs:

Yes Your Honor and the Bar Association in Kentucky accepted that argument – that’s where —

Abe Fortas:

Mr. Combs does UMW also maintain hospitals in some areas?

Harrison Combs:

It did a while it doesn’t but it pays the hospital bills for its members.

Abe Fortas:

Does it provide any medical services at all, any doctor services to its members?

Harrison Combs:

Yes, Your Honor.

Abe Fortas:

And how does they do that, does it do that by comparable arrangement or is it short list?

Harrison Combs:

Yes through the welfare clause.

Abe Fortas:

Has there been complaint anywhere from medical societies comparable to the complaint that has been made here by the bar association of Illinois?

Harrison Combs:

There have been complaints but not in the report that I know of.

Abe Fortas:

There has been no litigation then?

Harrison Combs:

No litigation that I know off.

Abe Fortas:

Are there other unions that have arrangements comparable to the UMW arrangement with respect to attorneys for —

Harrison Combs:

Yes, Your honor.

Abe Fortas:

For workmen compensation.

Harrison Combs:

Yes Your Honor there is deposition a way to compensate them but they are —

Abe Fortas:

Is that rare or is it fairly prevalent?

Harrison Combs:

I’ll say it’s fairly prevalent.

Byron R. White:

The welfare fund I think that is separate from the union treasury fund?

Harrison Combs:

Yes, Your honor.

Byron R. White:

And it is listed by separate board of welfare trustee?

Harrison Combs:

Yes Your Honor.

Byron R. White:

And with the separate and it’s made up entirely of the employer contributions?

Harrison Combs:

Yes Your Honor, well virtue of a Collective Bargaining Contract.

Byron R. White:

So the — this gentleman, this lawyer’s salary is not taken a from welfare fund?

Harrison Combs:

No Your Honor.

Byron R. White:

It’s paid out of union dues.

Harrison Combs:

Right of District 12.

Hugo L. Black:

Mr. Combs it doesn’t take — the last part of time and questions, you may have five minutes more to reply if you wish.

Harrison Combs:

Thank You Honor, I like to have it.

Earl Warren:

Mr. Bertrand you may have an extra five minutes also if you need it.

Bernard H. Bertrand:

I would, thank you very much.

Earl Warren:

Mr. Bertrand you may proceed now.

Bernard H. Bertrand:

Mr. Chief Justice and May it please the court.

In order to start on even keel here I want to make it perfectly clear with respect to a possible misunderstanding that the court may have with respect to disciplinary actions against Mr. Stewart Trainer.

As regards of this particular problem here Mr. Stewart Trainer has no disciplinary action pending against him.

In other words with respect to aiding and abetting the unauthorized practice of law by a way of agency.

However and I must go outside the record, if the court would permit me.

There is a disciplinary action pending against Mr. Trainer who is no longer a State Senator and it is on totally unrelated matter and he no longer represents the union.

Warren E. Burger:

(Inaudible)

Bernard H. Bertrand:

Well I only wanted to clear the fact that you asked the question Mr. Chief Justice, oh I’m sorry.

Earl Warren:

No, that’s not what I asked.

Bernard H. Bertrand:

Well, I didn’t wanted to have any correction that it was from this proceeding that there was a disciplinary action and that is what the Mr. Combs indicated.

Earl Warren:

Let me ask you this.

Bernard H. Bertrand:

Yes sir.

Earl Warren:

If this is unauthorized practice of the law, certainly the lawyer who is employed is guilty of unlawful practice of law.

Why don’t you, why haven’t you proceeded against him in the last 54 years having been, this practice having been in existence since 1913.

Bernard H. Bertrand:

Because the matter never was brought to the attention to the unauthorized practice committee by anyone making a complaint.

Earl Warren:

Who is the complainant here?

Bernard H. Bertrand:

The complainant here originally was in some 1957, a lawyer from West Frankfort, Illinois.

And he made it —

Earl Warren:

What was his complaint?

Bernard H. Bertrand:

His complaint was that the present man who was his predecessor Mr. Trainer was engaged in the unauthorized practice of law in being a salaried employer for the union and that was taken up by the bar association at that time and through developments it finally reached it’s — the point to where we file a suit at the approval of the bar association.

Earl Warren:

Now this case is 10 years old?

Bernard H. Bertrand:

At least Your Honor.

Earl Warren:

I thought that this man is only been there two years.

Bernard H. Bertrand:

No, the problem of unauthorized practice by the salaried lawyer is 10 years old.

The previous lawyer who handled this matter was a man Hannigan, and it is mentioned in the brief and in the record.

And he was a man who at that time — shortly after the time the investigation began became ill and apparently our predecessor committee did not want to push the matter because he was apparently very seriously ill and it, he eventually as court realized died and this man took this place, and it was at that stage that the more active participation occurred.

Earl Warren:

But other than that the state bar has had no interest in this matter since 1913.

Bernard H. Bertrand:

That is perhaps true, yes Your Honor, there has never been any matter brought directly to the state bar on — that is correct.

However that in and of itself is not reason why the state bar shouldn’t act when it has brought to its attention a plan such as this one which does not guarantee to the individual minor, confident and loyal legal representation as they claim.

Earl Warren:

Mr. Bertrand.

Bernard H. Bertrand:

Yes Mr. Justice Marshall.

Thurgood Marshall:

Has any miner complained.

Bernard H. Bertrand:

Yes, miners have complained to the extent–

Thurgood Marshall:

Is it in the record?

Bernard H. Bertrand:

No sir.

Thurgood Marshall:

Well, I assume that if complaint has been made would put him in (Inaudible).

Bernard H. Bertrand:

Well, these complaints occurred after the bar association started, this proceedings and before and after actually the interrogatories were made and filed and after the deposition of the Mr. Stewart Trainer and it was at that stage of the proceedings that the mine workers, United Mine Workers District 12 came in and asked for a summary judgment and we in turn filed our motion for summary decree and as the court considered both motions.

Thurgood Marshall:

Less than 50 years there were no complaints?

Bernard H. Bertrand:

No active complaints known to the bar.

Thurgood Marshall:

Did the conversation commission make any complaint?

Bernard H. Bertrand:

No sir.

Thurgood Marshall:

Did anybody make any complaint except this one lawyer?

Bernard H. Bertrand:

No one made any official complaint, but it was a matter of common knowledge among lawyers practicing before the compensation commission of the manner, the wholesale manner in which this was handled by the —

Thurgood Marshall:

These lawyers complained that the men weren’t happily represented?

Bernard H. Bertrand:

That was part of their complaints, Yes Sir.

Thurgood Marshall:

How did they know that?

Bernard H. Bertrand:

By virtue of the fact that here was a man that saw these miners — the day of the occurrence, of the day of the hearing I should say, and for the first time that they did that the man who represented the miners did not handle the case like other people who have cases before the compensation commission.

Thurgood Marshall:

Did you know of any two lawyers that handled the same case in the same way?

Bernard H. Bertrand:

Yes, I know many handled the same cases the same way–

Thurgood Marshall:

Did you?

Bernard H. Bertrand:

Mr. Justice Marshall, yes sir in a manager of this kind I think it would be quite proper and quite often handled that once they get the report from their company doctor, they would then send that man to an independent doctor —

Thurgood Marshall:

But the record all of this came out during this hearing doesn’t it?

Bernard H. Bertrand:

Yes, that’s true, that’s part of it is.

Thurgood Marshall:

So I mean you didn’t have any complaints before?

Bernard H. Bertrand:

No there was no official written complaint.

Thurgood Marshall:

The record showed that there were no complaints–

Bernard H. Bertrand:

That’s right.

Thurgood Marshall:

There is one name appeared for 50 years.

Bernard H. Bertrand:

That’s right.

Thurgood Marshall:

And the only complaint then the complaint with the bars.

Bernard H. Bertrand:

That is correct sir.

Thurgood Marshall:

Why is this case taken 10 years to get here?

Bernard H. Bertrand:

First instance was the illness of Mr. Hannigan, it was pushed aside by the then members of the unauthorized practice commission because the man was apparently having a condition which, from which he, it was expected he would die.

They did not —

Thurgood Marshall:

How long was it –?

Bernard H. Bertrand:

It was delayed from 1957 and 1959 till about ‘63 when Mr. Trainer took over and then – and incidentally in that period before that Mr. Chief Justice there was a period of time where Mr. Hannigan was interrogated by the committee and the same general information that appears in the deposition of Mr. Trainer came out at that time.

Thurgood Marshall:

So from ‘57 to ‘63 did Mr. Hannigan serve in this capacity?

Bernard H. Bertrand:

Yes.

Thurgood Marshall:

Was he working?

Bernard H. Bertrand:

Yes.

Thurgood Marshall:

Why would that change the attitude of the bar?

Bernard H. Bertrand:

He was working — he was working as best he could under the circumstances of his condition and I believe he used his son to help him.

Thurgood Marshall:

Would not that be unauthorized practice of bar too?

Bernard H. Bertrand:

This of course I agree but it was never brought too ahead due to the fact that there was a certain humanitarian feeling towards Mr. Hannigan, they did not want to do anything at that time that would make him, would worsen his condition.

Thurgood Marshall:

Did he die?

Bernard H. Bertrand:

Yes sir, he died and that is the reason why Mr. Trainer was replaced, as a matter of fact in an interim of some four or five months his son acted as the mine workers attorney and received his salary.

Bernard H. Bertrand:

The problem — the state of Illinois is confronted with a case of this kind is the plan itself clearly showed that the miners, please understand that as far as the Illinois State Bar Association is concerned our interest here is the public interest and the public in this case has to be the individual miner and it became quite evident from the record that here is a man who concludes 450 some cases a year that he was not doing the job that an person should do for those people — because that is almost an insurmountable number of cases to handle if you are going to handle them properly.

He testified under those in his deposition that he seldom saw these people before the hearing — that he only took them at the hearing and then I suppose he took the, well your company doctor says you have 10% of your life so therefore we’ll try and get 10% of the life.

He never made any attempt except in rare instances which he admits, rare instances — did he go and find out whether or not that company doctor was actually correct on that 10% life or maybe it might have be 70% of the life.

He didn’t do any of the things that a true individual attorney client relationship would dictate to any lawyer.

He did this on a mass basis.

Abe Fortas:

Now I wonder precisely what your point is, you wouldn’t question would you, at this date that the union had the right to recommend a particular lawyer to its members, would you?

Bernard H. Bertrand:

Mr. Justice Fortas –

Abe Fortas:

You are not asking us to over rule Railroad Trainmen.

Bernard H. Bertrand:

We — the Illinois State Supreme Court in In re Brotherhood of Trainmen set that pattern.

Abe Fortas:

Alright now what is your objection?

Bernard H. Bertrand:

Our objection is –

Abe Fortas:

Let us say the union couldn’t have referred every one of these miner to Mr. Trainer or whatever his name was, correct?

Bernard H. Bertrand:

That’s correct.

Abe Fortas:

And that’s established by a decision in Railroad Trainmen and now what is your —

Bernard H. Bertrand:

Our position is that, our position is that when you make the jump from mere recommendation to the employment of a lawyer, then you insert that particular union or that particular agency into the practice of law and you clove that union with the practice of law which is prohibited and the State of Illinois has the right to regulate the practice.

Abe Fortas:

Is it your point — well the question is whether it’s practice of law — certain — state regulation begins that’s really the question, no question about the state power to regulate the practice of law.

But does the record here show that the union attempted to or did in fact confront the legal advice or the methodology used by Mr. Trainer in giving legal advice.

Bernard H. Bertrand:

Well the record shows that he had people, members of the union who took these reports of actions, who sought that the man had a medical examination by the company doctor — that the international secretary, the local stewards, the three or four secretaries of the —

Abe Fortas:

I am afraid you are not, I am afraid I didn’t make my question clear.

Does the record show that the union controlled or attempted to control the legal advice given by Mr. Trainer to the injured mine workers?

Bernard H. Bertrand:

Not in that specific step, no sir, it does not.

Abe Fortas:

Does the record show that the union controlled or attempted to control Mr. Trainer’s methodology as procedure in handling these cases?

Bernard H. Bertrand:

I would say that it shows it by indirection, by the virtue of the number of cases that he had, but it doesn’t show it directly.

Thurgood Marshall:

Mr. Bertrand —

Bernard H. Bertrand:

Yes Mr. Chief Justice.

Thurgood Marshall:

— as I understand it, your great interest in this situation and the thing that prompted the action was your concern for the miners themselves, whether they were getting the right kind of legal services under this system.

Is that correct?

Bernard H. Bertrand:

That is correct Mr. Chief Justice.

Thurgood Marshall:

Now when this man and his lawyer made this complaint 10 years ago in the preparation of the case before a committee, was any investigation made of whether there had been any malpractice on so far as any of the minors are concerned or whether the minors individually had any claim of that kind?

Bernard H. Bertrand:

No, sir.

Hugo L. Black:

I wonder why you wouldn’t do that if that’s what you are really interested in and in the preparation of your case, I wonder why you wouldn’t want to show that that the fact that this man did have that number of cases actually resulted in these people having poor service?

Bernard H. Bertrand:

Mr. Chief Justice, I can only say that the beginning of this occurred before my tenure on the unauthorized practice —

Hugo L. Black:

But you are here representing the bar—

Bernard H. Bertrand:

Yes sir, yes sir.

Hugo L. Black:

–and not just while you’ve been —

Bernard H. Bertrand:

No, no I am just saying that that occurred beforehand and then when — during my time on the committee, the present developments occurred with respect to Mr. Steward training.

It was anticipated that these elements of the improper and insufficient representation would be further developed in this case, in the preparation of the case before it actually reached the trial stage.

But the union interposed this motion for summary decree.

At that time perhaps as not as able to look ahead and see what there is available to one, we likewise file such a motion and both motions were heard on the state of the record at that time and the court then determined from the state of the record at that time that there was evidence of unauthorized practice by the district lawyer.

Hugo L. Black:

Okay, did that go to the question of whether the minors themselves received the treatment.

Bernard H. Bertrand:

I don’t know, it did not other than the fact that from —

Hugo L. Black:

It’s isn’t in the record.

Bernard H. Bertrand:

No sir, it is not.

Hugo L. Black:

Then we can’t consider it can we?

Bernard H. Bertrand:

No, no that’s correct.

Hugo L. Black:

Now when did you come into this case?

Bernard H. Bertrand:

When did I come into the case?

Hugo L. Black:

Exactly.

Bernard H. Bertrand:

In 1963 I believe.

Hugo L. Black:

1963?

Bernard H. Bertrand:

Yeah.

Hugo L. Black:

Did you make any, did you make any investigation to find out whether minors have been properly treated under this system before your motion for summary judgment?

Bernard H. Bertrand:

In an informal way yes.

Hugo L. Black:

Yes.

Did you find any instances?

Bernard H. Bertrand:

Not specific but general, from general conversation with parties including attorneys who represented the coal companies.

Hugo L. Black:

Why didn’t you put them in the record by affidavit or otherwise?

Bernard H. Bertrand:

Because I felt that the time had transpired, the decree was entered before I could get any of that into the record.

Hugo L. Black:

When was the decree entered?

Bernard H. Bertrand:

The decree was entered in 19 — I don’t have the exact date Your Honor.

Bernard H. Bertrand:

1964, it was about September of 1964.

Hugo L. Black:

Very well.

May I ask you speaking on the constitution whether it’s relevant as to what, how the particular man does this –

Bernard H. Bertrand:

I think it isn’t.

First —

Hugo L. Black:

Is it not question of challenge to assist him, and are you challenging in any way the manner in which this man — or do you think it doesn’t have anything to do with its constitutionality?

Bernard H. Bertrand:

No.

I think that the main point in this case as far as the state is concerned is the fact that we have a compelling state interest to control the practice of law and insofar as the practice of law is concerned, the manner in which the man handles the business is only one facet of the control.

There are many —

Hugo L. Black:

But doesn’t have anything to do with the constitutionality?

Bernard H. Bertrand:

No I don’t think it does, other than the sense that the —

Hugo L. Black:

But he does a good job of it.

Bernard H. Bertrand:

That’s –.

Hugo L. Black:

Well then why shouldn’t we just approach the constitutional question here, Mr. Justice Black’s suggestion wholly asides them from these matters you have been talking about it, why shouldn’t we just assume that the service here is good if not better?

Bernard H. Bertrand:

Well —

Byron R. White:

Under this system or any other system. –

Bernard H. Bertrand:

I think you have to consider in order to consider the question of whether or not this is —

Byron R. White:

Would you be making the same argument if it were shown in this record clearly that this is perhaps the best system for legal services that could possibly be provided?

Bernard H. Bertrand:

I think I’d make the same argument.

I’d have to.

Hugo L. Black:

Well in other words if they employed five men to handle these 400 cases and that would have been adequate under your judgment as to how many cases a lawyer should handle without the same —

Bernard H. Bertrand:

You have the same evil of being a lay agency interfering with the practice of law.

Hugo L. Black:

That’s all there is in the case.

Bernard H. Bertrand:

That is — my judgment is the basic element of the case.

Abe Fortas:

Well in substance what you’re arguing here is that these people were being represented not by the lawyer or the lawyers, but that their legal work was if anything performed by a lay agency, that’s your point.

Bernard H. Bertrand:

That is correct Mr. Justice Fortas.

Abe Fortas:

And there — and you have to show some basis for that argument because if we go to the compensation and commission records, I suppose it goes that John (Inaudible) who is represented by Mr. Trainer or whoever is a qualified lawyer.

Now then you have to show us if there are in this record factors which show that this lawyer was not — was merely a nominal representative of these people and that the real representative was the UMW and thus far what you’ve told us, so far as I know is only that the UMW paid him a salary and that he did not collect the fee from the individual members, is that correct?

Bernard H. Bertrand:

That’s correct.

Abe Fortas:

What you’re saying is that that’s kind of (Inaudible) since the members then pay them – they then control them since the mineworkers paid them with salary, therefore the mine workers controlled him in the sense that the mine workers were really the representatives of people who appeared to be his clients.

Abe Fortas:

Is there anything more on your position than that?

Bernard H. Bertrand:

No, there isn’t — they either control him or have the right to control him and they could use the influence of their organization to control them and so therefore —

Hugo L. Black:

Suppose they did, what does that have to do with constitutionality, under the federal constitution of this law?

Bernard H. Bertrand:

It is my intention Mr. Justice Black that this isn’t a federal question at all.

Potter Stewart:

Well Mr. Bertrand, you surely — it is true isn’t it that in Button, we got there with a Virginia system, under which the — rather NAACP system in Virginia, where the compensation to the lawyer on behalf of the litigants was not paid by the litigants but was paid by the NAACP, wasn’t it?

We there held that the Virginia — I forget whether it was a statute, now I have to — it was a statute, but that statute which — tempted to prohibit this, did violate in that context the First and Fourteenth Amendments, isn’t it?

Bernard H. Bertrand:

Yes.

Potter Stewart:

Now surely on the constitutional question, you just can’t say there isn’t any in light of that decision.

Bernard H. Bertrand:

Well I can for this simple reason, because in that case there was, as has been time and time repeated, this was a case of political expression and in that case the opinion itself, the opinion stated sir that this was different than private disputes.

This was not a matter of private disputes, and this is a matter of a private dispute between the member of the union.

Potter Stewart:

It certainly says that this was in an area of lawsuits to vindicate political rights, otherwise by the First Amendment.

Bernard H. Bertrand:

That’s right.

Potter Stewart:

But surely it didn’t decide the question about the dispute, didn’t it?

Bernard H. Bertrand:

No it did not, it left it open.

Potter Stewart:

But we do have that issue before us —

Bernard H. Bertrand:

Then if you take the Virginia Brotherhood case, you will find there that the court stated there that the members had the right to discuss within themselves and to pick a representative, to recommend —

Potter Stewart:

There wasn’t any issue presented in the Brotherhood case as I recall it and that’s correct, the issue presented by this case was not presented in that case.

Bernard H. Bertrand:

Well the issue presented in the Brotherhood case was clearly that Virginia wouldn’t let the Brotherhood getaway with a recommendation for — approach.

Potter Stewart:

Perhaps I didn’t state my question well.

In that case whether or not the Brotherhood who was paying a salary to a lawyer, that the issue of the propriety of that in light of the constitution was not presented well.

Bernard H. Bertrand:

No.

no.

Byron R. White:

Would you be making the same argument as the union here instead of calling in an employee and paying the salary, just paying the retainer — say the gentleman was in private practice and a general practice or with a firm and the union just paid him —

Bernard H. Bertrand:

Mr. Justice White, I find no difference between a salaried employer and a person on retain.

Byron R. White:

I gather you would not make the same argument then if the union just told all of its employees go hire any lawyer you want and we’ll pay his fee.

Bernard H. Bertrand:

That is correct.

Abe Fortas:

Mr. Bertrand can you distinguish this case from the legal assistance program or the Poverty Office, the OEO.

That is to say as I understand it in some areas there are lawyers hired as — on funds provided by the Poverty Program and they represent indigent people and they represent them not only before agencies of the government but before courts.

Now on the basis of your argument, these people are not paid by the clients, they are paid by the — out of federal funds sometimes in some states out of state funds.

Now is it your representation that this is the practice of the law by the United States government and not by the people representing these indigents?

Bernard H. Bertrand:

On the contrary Mr. Justice Fortas, this is a question which you have raised is a question of taking care of the need of indigents.

The United Mine Workers District Club Members are by no means indigents.

Abe Fortas:

What’s that got to do with any legal front?

Bernard H. Bertrand:

Well I submit that —

Abe Fortas:

Or the regulation of the practice of the law.

You don’t make a distinction between Illinois law regulating practice before courts and agencies as whether the lawyer is representing an indigent he can do it, he can be paid by somebody else and is still professionally all right and vice-versa.

Bernard H. Bertrand:

But the bar of Illinois and the bar throughout this country did not object to the OEO program for the indigent.

They accepted–

Abe Fortas:

Oh I’m very proud, I’m very proud of the fact that they supported it enthusiastically.

Bernard H. Bertrand:

That’s right.

But there is an entire difference between that type of representation and the representation for a person who is a salaried employee, a person who is making money and who has a claim for some injury that he received, this is an entirely different status and the bar has never stated that every human being is entitled to representation if they belong to an agency.

Now this —

Abe Fortas:

You mean that’s fundamentally different even though the individual minor lost an arm or a leg they could still — different from the OEO situation because one is an indigent and the other isn’t?

Bernard H. Bertrand:

Mr. Chief Justice, yes I do.

I think that is correct, that there’s that difference.

Abe Fortas:

What if he lost both legs.

Bernard H. Bertrand:

Well if he — again I have to say that’s the same thing.

Abe Fortas:

Same thing.

Bernard H. Bertrand:

Same thing.

Abe Fortas:

What makes a person indigent and subject to –?

Bernard H. Bertrand:

Well, he became indigent perhaps after that particular occurrence if you might say, maybe he didn’t I don’t know what the situation maybe from his injury that he received as a minor but that does not put him over into the class of the indigent before the event by any manner or means and it would have to be the most serious type of situation that you could call him then an indigent.

Abe Fortas:

Suppose a man was not an indigent and he lost both legs in an automobile accident and he then became indigent and he went to the OEO for help.

what is the difference between that case and the man who in an industrial accident loses both legs?

Bernard H. Bertrand:

Because there’s a protection of employment that he had in one instance as opposed to the other.

I would say that would possibly be one of the answer Mr. Chief Justice that he then wasn’t necessarily an indigent.

He became poor by virtue of the fact he may not been able to work but in the case —

Abe Fortas:

So did the fellow who lost his two legs in an automobile accident.

Bernard H. Bertrand:

But in the minor situation he has of course the protection of the collective bargaining arrangements and the welfare program of his union.

This brings to the question, the problem that is raised by the amicus briefs.

I think that the question of group legal service here is something that if the bar is to or to look forward to the potentiality of group legal service in our society, we’re going to have such a situation that there will be no control of lawyers, there will be the situation that I have brought to the court’s attention in the objections of where you’ve been advertised willy-nilly to the particular group that you represent instead of having just unions and laboring people being represented.

Bernard H. Bertrand:

You will have the Airline Pilots Association, they could have all of their individual matters taken care of by their salaried lawyer, the American Manufacturers Association, the Illinois Manufacturers Association.

All of their various potential litigated matters or legal matters will trust anything of that nature, taken care of by a group arrangement.

Abe Fortas:

Okay but those segments are not in this case but there are some things that are relevant I think that are now and how do you dispose off the legal aid bureaus in this country that are devoted to defending, taking care of people’s lives in civil matters as well as criminal matters?

Now, just yesterday I happily paid my contribution to a group of lawyers in this community who have joined together for the purpose of representing indigents in civil manners.

Now, they don’t pay any fees and they’re controlled by this group of lawyers who employ lawyers to represent these people and that’s done all over the United States where bar associations are really forward-looking and are trying to help indigents.

Bernard H. Bertrand:

And I would say that Illinois is a forward-looking bar association because it does engage in that type of procedure, there’s a large legal aid bureau in Chicago.

There are many legal aid groups throughout the State of Illinois.

Hugo L. Black:

Now what is the basic difference between that employment and the employment there is here?

Bernard H. Bertrand:

Because there the people are in need of legal assistance and they don’t have the means to get it.

They are not necessarily in the absolute impoverished state but they are in that nebulous state where they don’t quite have enough money or they don’t quite know what to do with some of their problems that are bothering them and this is a perfect place for them to go.

Hugo L. Black:

Isn’t that the general situation so far as medical care in this country is concerned with a great mass of working people, they are not indigent at one moment but when they became ill, they are indigent because they can’t pay the medical expenses but in this situation they can’t pay the legal expenses to get their rights.

Bernard H. Bertrand:

Of course Mr. Chief Justice I say that that’s the extreme I mean we — I claim that that’s the extreme that they can’t.

When you become ill you can’t pay the medical and when you have a legal problem, you can’t pay the legal fees, those are the extremes.

Hugo L. Black:

There are many millions of people who are supposed to be in that class or in this country from all of the studies that have been made, that’s what brought Medicare into existence, isn’t it?

Bernard H. Bertrand:

That is correct.

Hugo L. Black:

But it wasn’t the extreme case, it was normal case.

Bernard H. Bertrand:

Well, I don’t know how you can categorize them of course in the true sense of the word but it was found there was a need to legal aid societies, lawyer reference services were established and the bar has done a great service to the public by being involved in all those things.

But what we’re dealing here in this case is with an organization that has members who are not impoverished.

The State of Illinois is the fourth largest coal producing state in the country.

It has a tremendous potential of employment within the coal field.

There are some new developments in the coal field, that are just occurring right at the present time and these are going to mean more employment for the union member.

Recently the, one of the amicus put out a poll to try and find out just what type of person the union member was and the AFFL-CIO found out that their member is the type of person who goes to work, from work to his home in the suburbs and sits in his backyard with a highball in his hand and complaints about high taxes.

He is no longer the indigent, he is no longer the poor fellow, he’s no longer the fellow who lives in the poor areas of the city.

Hugo L. Black:

How about Appalachia?

Bernard H. Bertrand:

Appalachia is a different thing what occurs in Appalachia and what is —

Hugo L. Black:

Will the constitutional principle of your case be different than Appalachia?

Bernard H. Bertrand:

I won’t say no because if you remember Mr. Combs informed the Court that in Appalachia in West Virginia, they also had a complaint by the Bar Association and they sat down and worked it out.

We tried to get the minors to sit down and work this out with us, they refused, they took the adamant approach.

Hugo L. Black:

What did you want them to do?

Bernard H. Bertrand:

We wanted them, our major premise was we wanted them to follow Illinois mineworker’s opinion which said that you can recommend attorneys whom you feel to be competent; we wanted them to do that.

Bernard H. Bertrand:

Now, there’s no saying that we would not have perhaps by over the bargaining table, worked out something that in the judgment of the committee would have been considered a proper way of handling the union members business.

They wouldn’t do so that’s why we’re here.

Thank you, very much.

Earl Warren:

Mr. Combs.

Harrison Combs:

Court please, by way of rebuttal in connection with the position taken by counsel that the bar association as a matter of policy had a compelling interest to protect the coal miners against their legal aid system of Illinois that’s what it was known to.

Constitutional issues here as we see them were stated by this court in the trialing case.

This court said that the right of members to consult with each other in a paternal organization necessarily includes the right to select a spokesman from their member and could be expected to get the advice of his counsel.

That is the role played by the members who carry out the legal aid program, and the right for the workers personally through a special department, under a brotherhood to advise concerning the need for legal assistance.

Most importantly what lawyer and member could confidently rely on as an inseparable part of this constitutionally guaranteed right to assist and to advise each other, their only question of payment by counsel, by the union of the counsel.

The railroad workers by recommending competent lawyers to each other obviously are not themselves engaging in the practice of law nor are they are the lawyers who may select parties to any soliciting events.

It is interesting to note that in Great Britain unions do not simply recommend lawyers to members in need of advise, the retained counsel, paid by the union to represent members in personnel law suits, a practice similar to that which we upheld in NAACP, but —

Byron R. White:

Mr. Combs on the one hand, I gather you would also argue to sustain union counsel right across the board for members — again by the litigation of all kind.

Harrison Combs:

I think there would be a difference if the Court please — in this case, this —

Byron R. White:

Well that’s all, I just wanted to figure.

Harrison Combs:

Well let me read what the court said about that, I think I can get it for you in a minute.

“In our consideration to this case the policy arguments of the mine workers and amica at present — ” This is Illinois brief — questions of the hazards involved in coal mining and undoubtedly the possibility exists that the injured coal miners untutored in the intricacies of workmen’s compensation law might accept wholly inadequate settlements — benefit to the miner in that conversation, the counsel or the client here in fact is from the union treasury rather than the injured member or for his family is not to be easily disregarded.

Now we’re talking about the compelling interest of the state, in some instances it could perhaps infringe to some extent on constitutional rights in the adjustments there, and I think it would be an apex in Your Honors question whether or not that the need as demonstrated so clearly as this court in Justice Black’s opinion said in the Trainmen case that traditionally that the railroad people had an awful time securing their rights under the laws of the country.

Byron R. White:

Well let’s see, this record contained a series of interventions by the union in to these cases with reference to the attorney or a reservation of the contract to get the — employer wants some thing in the direction of the union, would you say then that the state had made out a decent case?

Harrison Combs:

That would make a different case Your Honor.

I think that if the daily tactics and the strategy and the trying of this lawsuit that the union interfered in to that — anybody rather than the claimant without his consent, without his knowledge or engaging in it, I think we’d have a different case.

Byron R. White:

A different case — would then the state have an interest?

Harrison Combs:

I think it was the —

Byron R. White:

(Inaudible)

Harrison Combs:

I think it probably could in some instances you have to have the facts in order to determine it.

(Inaudible)

Harrison Combs:

I agree with Mr. Justice Harlan on that, but I also want to point out that this court said in the Button case that whether we are charging solicitation in Virginia, and that, that was one of the main reasons the court struck down the plan of the NAACP, that there was a total absence of any evidence dealing with solicitation in that case and the state cannot through the guards of labels, et cetera, strike down the constitutional rights of these people.

(Inaudible)

Harrison Combs:

Yeah.

I’m going to ask you this (Inaudible)

Harrison Combs:

I think we definitely could, I think–

(Inaudible)

Harrison Combs:

Yes we do under statute 7 of the National Labor Relations Act that the Act gives these coal miners the right of mutual aided benefits and protection concerning activities that, that might well include their right to select counsel in workmen’s compensation case.

(Inaudible)

Harrison Combs:

To that extent because we don’t believe that the state under the guides of regulating the practice of law can interfere with an act of Congress, is constitutionally right.

Earl Warren:

Mr. Combs may I ask you this question?

In some states I know that the legislature in its concern for the welfare of the workers themselves limit very greatly the fees that can be charged in these compensation cases.

In fact they discourage lawyers coming there at all and they have put the percentage of the award so low that it’s impossible for — almost impossible for a workman to go out who has to — what the public might think was a minor injury, it would be impossible for him to go out and hire a competent lawyer because the lawyer wouldn’t spend his time for that small amount.

Now I don’t know whether that’s exists in Illinois or not, but does it?

Harrison Combs:

I doubt that it would exist in Illinois for this reason and I think this a very pertinent observation.

For 54 years the union has been able to protect those member’s rights down in there, and we’ve got a good situation not because of what they are arriving here, but in spite of it.

I think that they’ve been able to protect their members down there, just like this welfare fund — the court was making the inquiries about.

They like to take great credit for it, but in getting that welfare fund every legal obstruction, there were other obstructions, but in the way of it, we feel that if this position taken the bar association in this instance prevails, that we’ll have the same situation that developed and has existed in 1912 that led up to this situation and we think we’ve improved down here in situation.