United Mine Workers of America, District 12 v. Illinois State Bar Association/Dissent Harlan

by John Marshall Harlan II

United States Supreme Court

389 U.S. 217

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

 Argued: Oct. 17, 1967. --- Decided: Dec 5, 1967

Mr. Justice HARLAN, dissenting.

This decision cuts deeply into one of the most traditional of state concerns, the maintenance of high standards within the state legal profession. I find myself unable to subscribe to it.

The Canons of Professional Ethics of the Illinois State Bar Association forbid the unauthorized practice of law by any lay agency. ^[1] The Illinois Supreme Court, acting in light of these canons and in exercise of its common-law power of supervision over the Bar, ^[2] prohibited the United Mine Workers of America, District 12, from employing a salaried lawyer to represent its members in workmen's compensation actions before the Illinois Industrial Commission. I do not believe that this regulation of the legal profession infringes upon the rights of speech, petition, or assembly of the Union's members, assured by the Fourteenth Amendment.

As I stated at greater length in my dissenting opinion in NAACP v. Button, 371 U.S. 415, 448, 452-455, 83 S.Ct. 328, 345, 347, 349, 9 L.Ed.2d 405, the freedom of expression guaranteed against state interference by the Fourteenth Amendment includes the liberty of individuals not only to speak but also to unite to make their speech effective. The latter right encompasses the right to join together to obtain judicial redress. However, litigation is more than speech; it is conduct. And the States may reasonably regulate conduct even though it is related to expression. The pivotal point is how these competing interests should be resolved in this instance.

My brethren are apparently in accord. The majority begins by noting that this activity of the Union is related to expression and therefore is of a type which may be sheltered from state regulation by the Constitution. But the majority's inquiry does not stop there; it goes on to examine the state concerns and concludes that the decree 'is not needed to protect the State's interest in high standards of legal ethics.' See ante, at 357. ^[3] I agree, of course, with this 'balancing' approach. See, e.g., NAACP v. Button, supra, 371 U.S. at 452-455, 83 S.Ct. at 347-349 (dissenting opinion); Konigsberg v. California Bar, 366 U.S. 36, 49-51, 81 S.Ct. 997, 1005-1007, 6 L.Ed.2d 105; Talley v. State of California, 362 U.S. 60, 66, 80 S.Ct. 536, 539, 4 L.Ed.2d 559 (concurring opinion). Indeed, I cannot conceive of any other sound method of attacking this type of problem. For if an 'absolute' approach were adopted, as some members of this Court have from time to time insisted should be so with 'First Amendment' cases, ^[4] and the state interest in regulation given no weight, there would be no apparent reason why, for example, a group might not employ a layman to represent its members in court or before an agency because it felt that his low fee made up for his deficiencies in legal knowledge. Cf. Hackin v. Arizona, 389 U.S. 143, 88 S.Ct. 325, 19 L.Ed.2d 347 (Douglas, J., dissenting).

Although I agree with the balancing approach employed by the majority, I find the scales tip differently. I believe that the majority has weighed the competing interests badly, according too much force to the claims of the Union and too little to those of the public interest at stake. As indicated previously, the interest of the Union stems from its members' constitutionally protected right to seek redress in the courts or, as here, before an agency. By the plan at issue, the Union has sought to make it easier for members to obtain benefits under the Illinois Workmen's Compensation Act. ^[5] The plan is evidently designed to help injured union members in three ways: (1) by assuring that they will have knowledge of and access to an attorney capable of handling their claims; (2) by guaranteeing that they will not be charged excessive legal fees; and (3) by protecting them from crippling, even though reasonable, fees by making legal costs payable collectively through union dues. These are legitimate and laudable goals. However, the union plan is by no means necessary for their achievement. They all may be realized by methods which are proper under the laws of Illinois.

The Illinois Supreme Court in this case repeated its statement in a prior case that a union may properly make known to its members the names of attorneys it deems capable of handling particular types of claims. ^[6] Such union notification would serve to assure union members of access to competent lawyers.

As regards the protection of union members against the charging of unreasonable fees, a fully efficient safeguard would seem to be found in the Illinois Workmen's Compensation Act itself. An amendment to the Act in 1915, shortly after its initial passage, ^[7] provided that the Industrial Commission.

'shall have the power to determine the reasonableness and fix the amount of any fee or compensation charged by any person for any service performed in connection with this Act, or for which payment is to be made under this Act or rendered in securing any right under this Act.' ^[8]

In 1927, the words 'including attorneys, physicians, surgeons and hospitals' were added following the phrase 'or compensation charged by any person.' ^[9] Thus, there would now appear to be no reasonable grounds for fearing that union members will be subjected to excessive legal fees.

The final interest sought to be promoted by the present plan is in the collective payment of legal fees. That objective could presumably be realized by imposing assessments on union members for the establishment of a fund out of which injured members would be reimbursed for their legal expenses. ^[10] There is no reason to believe that this arrangement would be improper under Illinois law, since the union's obligation would run only to the member and there would be no financial connection between union and attorney.

The regulatory interest of the State in this instance is found in the potential for abuse inherent in the union plan. The plan operates as follows. The Union employs a licensed lawyer on a salary basis ^[11] to represent members and their dependents in connection with their claims under the Workmen's Compensation Act. Members are told that they may employ other attorneys if they wish. The attorney is selected by the Executive Board of District 12, and the terms of employment specify that the attorney's sole obligation is to the person represented and that there will be no interference by the Union. Injured union members are furnished by the Union with a form which advises them to send the form to the Union's legal department. Upon receipt of the form, the attorney assumes it to constitute a request that he file on behalf of the injured member a claim with the Industrial Commission, though no such explicit request is contained in the form. The application for compensation is prepared by secretaries in the union offices, and when complete it is sent directly to the Industrial Commission. In most instances, the attorney has neither seen nor talked with the union member at this stage, though the attorney is available for consultation at specified times. After the filing of the claim and prior to the hearing before the Commission, the attorney prepares for its presentation by resorting to his file and to the application, usually without conferring with the injured member. Ordinarily the member and this attorney first meet at the time of the hearing before the Commission.

The attorney determines what he thinks the claim to be worth and attempts to settle with the employer's attorney during prehearing negotiations. If agreement is reached, the attorney recommends to the injured member that he accept the result. If no settlement occurs, a hearing on the merits is held before the Industrial Commission. The full amount of the settlement or award is paid to the injured member. The attorney retains for himself no part of the amount received, his sole compensation being his annual salary paid by the Union.

This union plan contains features which, in my opinion, Illinois may reasonably consider to present the danger of lowering the quality of representation furnished by the attorney to union members in the handling of their claims. The union lawyer has little contact with his client. He processes the applications of injured members on a mass basis. Evidently, he negotiates with the employer's counsel about many claims at the same time. The State was entitled to conclude that, removed from ready contact with his client, insulated from interference by his actual employer, paid a salary independent of the results achieved, faced with a heavy caseload, ^[12] and very possibly with other activities competing for his time, ^[13] the attorney will be tempted to place undue emphasis upon quick disposition of each case. Conceivably, the desire to process forms rapidly might influence the lawyer not to check with his client regarding ambiguities or omissions in the form, or to miss facts and circumstances which face-to-face consultation with his client would have brought to light. He might be led, so the State might consider, to compromise cases for reasons unrelated to their own intrinsic merits, such as the need to 'get on' with negotiations or a promise by the employer's attorney of concessions relating to other cases. The desire for quick disposition also might cause the attorney to forgo appeals in some cases in which the amount awarded seemed unusually low. ^[14]

Thus, there is solid support for the Illinois Supreme Court's conclusion that the union plan presents a danger of harm to the public interest in a regulated bar. The reasonableness of this result is further buttressed by the numerous prior decisions, both in Illinois and elsewhere, in which courts have prohibited the employment of salaried attorneys by groups for the benefit of their members. ^[15]

The majority dismisses the State's interest in regulation by pointing out that there have been no proven instances of abuse or actual disadvantage to union members resulting from the operation of the union plan. See ante, at 225. But the proper question is not whether this particular plan has in fact caused any harm. ^[16] It is, instead, settled that in the absence of any dominant opposing interest a State may enforce prophylactic measures reasonably calculated to ward off foreseeable abuses, and that the fact that a specific activity has not yet produced any undesirable consequences will not exempt it from regulation. See, e.g., Hoopeston Canning Co. v. Cullen, 318 U.S. 313, 321-322, 63 S.Ct. 602, 607, 87 L.Ed. 777; Daniel v. Family Sec. Life Ins. Co., 336 U.S. 220, 222-225, 69 S.Ct. 550, 551-553, 93 L.Ed. 632.

It is also irrelevant whether we would proscribe the union plan were we sitting as state judges or state legislators. The sole issue before us is whether the Illinois Supreme Court is forbidden to do so because the plan unduly impinges upon rights guaranteed to the Union's members by the Fourteenth Amendment. Since the finding that the union plan presents dangers to the public and legal profession is not an arbitrary one, and since the limitation upon union members is so slight, in view of the permissible alternatives still open to them, I would hold that there has been no denial of constitutional rights occasioned by Illinois' prohibition of the plan.

This decision, which again manifests the peculiar insensitivity to the need for seeking an appropriate constitutional balance between federal and state authority that in recent years has characterized so many of the Court's decisions under the Fourteenth Amendment, puts this Court more deeply than ever in the business of supervising the practice of law in the various States. From my standpoint, what is done today is unnecessary, undesirable, and constitutionally all wrong. In the absence of demonstrated arbitrary or discriminatory regulation, state courts and legislatures should be left to govern their own Bars, free from interference by this Court. ^[17] Nothing different accords with longstanding and unquestioned tradition and with the most elementary demands of our federal system.

I would affirm.

Notes

1. Canons 35, 47, Canons of Ethics of the Illinois State Bar Association. These canons are identical to the corresponding canons of the American Bar Association.
2. Even in the absence of applicable statutes, state courts have held themselves empowered to promulgate and enforce standards of professional conduct drawn from the common law and the closely related prohibitions of the Canons of Ethics. See, e.g., In re Maclub of America, Inc., 295 Mass. 45, 3 N.E.2d 272, 105 A.L.R. 1360, and cases therein cited. See generally Drinker, Legal Ethics 26-30, 35-48.
3. This weighing of the competing interests involved is the same approach as that used in NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405, and in Railroad Trainmen v. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89. However, since a new balance must be struck whenever the competing interests are significantly different, this decision is not controlled by those cases. The union members in this case are not asserting legal rights which stem either from the Constitution or from a federal statute, sources of origin stressed respectively in Button, see 371 U.S., at 429-431, 441-444, 83 S.Ct. at 335-337, 342-343 and in Railroad Trainmen, see 377 U.S., at 3-6, 84 S.Ct. at 1115-1116. Furthermore, the union plan at issue here differs from the referral practice involved in Railroad Trainmen because it involves the services of a union-salaried lawyer.
4. See, e.g., Lathrop v. Donohue, 367 U.S. 820, 865, 871-874, 81 S.Ct. 1826, 1849, 1852-1854, 6 L.Ed.2d 1191 (dissenting opinion); Konigsberg v. California Bar, 366 U.S. 36, 56, 60-71, 81 S.Ct. 997, 1009, 1011-1017, 6 L.Ed.2d 105 (dissenting opinion).
5. Ill.Rev.Stat. c. 48, § 138.1 et seq. (1963).
6. See 35 Ill.2d, at 118-119, 219 N.E.2d, at 506-507. The earlier Illinois decision referred to was In re Brotherhood of R. R. Trainmen, 13 Ill.2d 391, 150 N.E.2d 163.
7. It may be significant that the union plan was instituted in 1913, prior to this amendment of the Act. See ante, at 219.
8. Ill.Laws, 1915, p. 408.
9. Ill.Laws, 1927, p. 511.
10. Cf. American Bar Association, Committee on Professional Ethics, Informal Opinion No. 469 (December 26, 1961) (union may reimburse member client for legal expenses).
11. The salary paid at the time of this action was $12,400 per annum.
12. The attorney employed by the Union in this case handled more than 400 workmen's compensation claims a year.
13. The attorney employed by the Mine Workers was also an Illinois state senator and had a private practice other than the Mine Workers' representation.
14. Of 351 workmen's compensation cases, from all sources, which were appealed to the Illinois courts during the period 1936 1967, only one was appealed by a miner affiliated with District 12. No such miner has appealed since 1942. See Respondents' Brief, at 17-18.
15. See, e.g., People ex rel. Courtney v. Association of Real Estate Tax-payers' 354 Ill. 102, 187 N.E. 823; In re Maclub of America, Inc., 295 Mass. 45, 3 N.E.2d 272, 150 A.L.R. 1360, and cases therein cited; Richmond Assn. of Credit Men, Inc. v. Bar Assn. of Richmond, 167 Va. 327, 189 S.E. 153. The Canons of Ethics of the American Bar Association have also been interpreted as forbidding arrangements of the kind at issue here. See American Bar Association, Committee on Unauthorized Practice of the Law, Informative Opinion No. A of 1950, 36 A.B.A.J. 677.
16. It is possible that the operation of the plan did result in union members receiving a lower quality of legal representation than they otherwise would have had. For example, the Mine Workers' present attorney recovered an average of $1,160 per case, while his predecessor secured an average of $1,350, even though the permissible rates of recovery were lower during the predecessor's tenure. See Record, at 53-54, 58-60; Brief for Respondents 18. See also n. 14, supra.
17. It has been suggested both in this case and elsewhere, cf. Hackin v. Arizona, 389 U.S. 143, 88 S.Ct. 325, 19 L.Ed.2d 347 (Douglas, J., dissenting), that prevailing Canons of Ethics and traditional customs in the legal profession will have to be modified to keep pace with the needs of new social developments, such as the Federal Poverty Program. That may well be true, but such considerations furnish no justification for today's heavyhanded action by the Court. The American Bar Association and other bodies throughout the country already have such matters under consideration. See, e.g., 1964 ABA Reports 381-383 (establishment of Special Committee on Ethical Standards); 1966 ABA Reports 589-594 (Report of Special Committee on Availability of Legal Services); 39 Calif.State Bar Journal 639-742 (Report of Committee on Group Legal Services). Moreover, the complexity of these matters makes them especially suitable for experimentation at the local level. And, all else failing, the Congress undoubtedly has the power to implement federal programs by establishing overriding rules governing legal representation in connection therewith.