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No. 79 "Opinion 148 of the Standing Committee on Professional Ethics and Grievances of the American Bar Association," November, 1935. American Liberty League. 400dpi TIFF G4 page images Digital Library Services, University of Kentucky Libraries Lexington, Kentucky Am_Lib_Leag_79 These pages may freely searched and displayed. Permission must be received for subsequent distribution in print or electronically. No. 79 "Opinion 148 of the Standing Committee on Professional Ethics and Grievances of the American Bar Association," November, 1935. American Liberty League. American Liberty League. Washington, D.C. 1935. This electronic text file was created by Optical Character Recognition (OCR). No corrections have been made to the OCR-ed text and no editing has been done to the content of the original document. Encoding has been done through an automated process using the recommendations for Level 1 of the TEI in Libraries Guidelines. Digital page images are linked to the text file. Nor is there any fair interpretation of Canon 28 which may be said to be offended by this proposal. It will be noted that the offer made in the address is to defend citizens against threatened infringement of their constitutional rights. So far as we are able to anticipate, no substantial increase of litigation is likely to result from the expressed willingness of these men to serve in such capacity. All that they have offered is their experience and skill "if and when any American citizen, however humble, is without means to defend his constitutional rights in a court of justice." The Committee is unable to see anything unethical or improper in such a course. Our view finds support in In Re Ades, 6 Fed. Supp. 467. This opinion is written with full knowledge of the controversial questions involved; of the tremendous issues which are now before the American people and in which the American Liberty League and the National Lawyers Committee are vitally interested on one side. It is the opinion of the Committee that circumstances such as these render it wholesome and beneficial that there should be free interchange of views and public expression of opinion by those best versed in the topics concerned. This group has organized and appears on the one side; a similar group may well organize and function on the other side. Such an eventuality is more to be desired than feared. So long as the rights of the public are entrusted to those best able to serve them by reason of their skill, experience and high motive, the public will be well served. A nation is at its safest when its most eminent citizens are imbued with sufficient patriotism to interest themselves in the public welfare, even at great sacrifice to their private affairs. Consideration of the public addresses, interviews and correspondence relating thereto, which have been submitted to this Committee, convinces us that the issue raised is one of conflicting theories and philosophies of government under the federal constitution. The question presented, with its implications, involves problems of political, social and economic character that have long since assumed the proportions of national issues, on one side or the other of which multitudes of patriotic citizens have aligned themselves. These issues transcend the range of professional ethics. OPINION 148 ★ ★ ★ Of the Standing Committee on Professional Ethics and Grievances of the Amer ican Bar Association "The right of citizens to organize and to give expression to views which they entertain upon public questions is one of the unalienable rights which Americans enjoy, and lawyers enjoy that right as citizens in common with their fellow men." "The defense of indigent citizens, without compensation, is carried on throughout the country by lawyers representing legal aid societies, not only with the approval, but with the commendation of those acquainted with the work." AMERICAN LIBERTY LEAGUE T^ational Headquarters NATIONAL PRESS BUILDING WASHINGTON, D. C. Document No. 79 November, 1935 Opinion 148 ★ Organization by lawyers and expression of their views on public questions, including the validity of legislation, is not unethical. Offering publicly to render legal services without charge to citizens who are unable to pay for them is not unethical. A number of members of the American Bar Association have requested the opinion of the Committee upon the following facts: An association has been organized under the title of the American Liberty League. One of the adjuncts of that Association consists of a group of lawyers known as the National Lawyers Committee, presently fifty-eight in number and including prominent counsel from various cities and towns throughout the United States. Under date of October 25 one of these attorneys, in a radio address, while describing the work of the Committee which had just published an opinion as to the constitutionality of the National Labor Relations Act, made the following statement: "If and when any American citizen, however humble, is without means to defend his constitutional rights in a court of justice, one or more of these lawyers will, without any compensation from any source, defend the rights of the individual." The question propounded is whether or not this statement with its implications offends any of the Canons of Ethics of the American Bar Association. The Committee's opinion was stated by Mr. McCracken, Messrs. Sutherland, Martin, Arant, Ailshie and McCoy concurring. The Honorable Orie L. Phillips was absent and did not participate. In the view of the Committee, the question involves more than the mere offer contained in the foregoing excerpt from the address. It comprises a consideration of the proposed functioning of the National Lawyers Committee, which, as described in the foregoing address and in a number of pamphlets circulated by the American Liberty League, consists in the main 2 of two proffers of service, (a) the preparation and dissemination from time to time of opinions upon legislation as the same is enacted by the Congress or perhaps the legislatures of the several states with particular reference to the constitutionality of such legislation, and (b) voluntary defense of American citizens unable financially to retain counsel when such citizens believe their constitutional rights to be imperilled by such legislation. The right of citizens to organize and to give expression to views which they entertain upon public questions is one of the unalienable rights which Americans enjoy, and lawyers enjoy that right as citizens in common with their fellow men. The Committee on Professional Ethics and Grievances of the American Bar Association expresses no opinion as to the soundness of the conclusions reached by the National Lawyers Committee of the American Liberty League that the National Labor Relations Act is unconstitutional, but we do affirm that lawyers thus associated have the right to express their views in that way. Voltaire said, "I wholly disapprove of what you say, but will defend to the death your right to say it." Moreover, in upholding their right to organize and express and promulgate their views we need not assume that these lawyers are actuated solely by altruistic motives. It would be extraordinary indeed if some of the lawyers in the list do not have some clients whose rights may be adversely affected, by the legislation which the lawyers condemn, but their right to organize and declare their views cannot for that reason be denied, and no ethical principle is thereby violated. The subject discussed is one the importance of which can hardly be over-estimated, and it is well that it can be discussed with the dignity and learning and strength which characterize the publications which have been brought to our attention. With equal assurance we uphold the right of lawyers and others who are in agreement with the policies set forth in the legislation complained of, to organize and express themselves. Lawyers, farmers and mechanics alike enjoy the right of free speech and a free press and the right peaceably to assemble and petition the government for a redress of grievances. The second question divides itself into two 3 of two proffers of service, (a) the preparation and dissemination from time to time of opinions upon legislation as the same is enacted by the Congress or perhaps the legislatures of the several states with particular reference to the constitutionality of such legislation, and (b) voluntary defense of American citizens unable financially to retain counsel when such citizens believe their constitutional rights to be imperilled by such legislation. The right of citizens to organize and to give expression to views which they entertain upon public questions is one of the unalienable rights which Americans enjoy, and lawyers enjoy that right as citizens in common with their fellow men. The Committee on Professional Ethics and Grievances of the American Bar Association expresses no opinion as to the soundness of the conclusions reached by the National Lawyers Committee of the American Liberty League that the National Labor Relations Act is unconstitutional, but we do affirm that lawyers thus associated have the right to express their views in that way. Voltaire said, "I wholly disapprove of what you say, but will defend to the death your right to say it." Moreover, in upholding their right to organize and express and promulgate their views we need not assume that these lawyers are actuated solely by altruistic motives. It would be extraordinary indeed if some of the lawyers in the list do not have some clients whose rights may be adversely affected, by the legislation which the lawyers condemn, but their right to organize and declare their views cannot for that reason be denied, and no ethical principle is thereby violated. The subject discussed is one the importance of which can hardly be over-estimated, and it is well that it can be discussed with the dignity and learning and strength which characterize the publications which have been brought to our attention. With equal assurance we uphold the right of lawyers and others who are in agreement with the policies set forth in the legislation complained of, to organize and express themselves. Lawyers, farmers and mechanics alike enjoy the right of free speech and a free press and the right peaceably to assemble and petition the government for a redress of grievances. The second question divides itself into two sub-heads (1) the rendering of services of the Committee or of the members thereof without compensation in defense of American citizens who believe their constitutional rights to be imperilled by any legislation, and (2) the publication of a proffer of such service by radio broadcast, the distribution of pamphlets, or otherwise. As to the first of these questions there would seem to be no doubt. The defense of indigent citizens, without compensation, is carried on throughout the country by lawyers representing legal aid societies, not only with the approval, but with the commendation of those acquainted with the work. Not infrequently services are rendered out of sympathy or for other philanthropic reasons, by individual lawyers who do not represent legal aid societies. There is nothing whatever in the Canons to prevent a lawyer from performing such an act, nor should there be. Such work is analogous to that of the surgeon who daily operates in the wards of the hospitals upon patients free of charge a work which is one of the glories of the medical profession. As to the second question, consideration must be given to the effect upon it of two of the Canons of Ethics of the American Bar Association: Canon 27 provides that there shall be no solicitation of business by newspaper advertising or touters or otherwise; Canon 28 provides that it is unethical to stir up litigation or strife. In the opinion of the Committee, this proffer of service, even when broadcast over the radio, or tendered through the circulation of printed matter to the general public, offends neither of these Canons. The Canon proscribing the solicitation of business is aimed at commercialization of the profession. It announces the principle that the practice of the law is a profession and not a trade, and that the effort to obtain clients by advertising is beneath the dignity of the self-respecting lawyer. It has to do, moreover, with the effort to obtain remunerative business, ■the endeavor to increase the lawyer's practice with the end in view of enlarging his income. It certainly was never aimed at a situation such as this, in which a group of lawyers announce that they are willing to devote some of their time and energy to the interests of indigent citizens whose constitutional rights are believed to be infringed. 3 4