UNITED TRANSPORTATION UNION v. MICHIGAN BAR

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Argument of John J. Naughton

Chief Justice Warren E. Burger: Mr. Naughton, you may proceed whenever you’re ready.

Mr. John J. Naughton: Mr. Chief Justice and may it please the Court.

This case is the second dealing by this Court with the legal aid or legal service plan of the Brotherhood of Railroad Trainmen.

The petitioner here comes under the different name of the United Transportation Union, but the reason for that is solely because of the Trainmen has been merged into that successor union.

At all times that the injunctions were issued in this case, the Brotherhood of Railroad Trainmen was the defendant on the appeal to the Michigan Supreme Court, the merger into the surviving union were quashed.

The questions presented in this case are whether the injunction issued deprives the union members of rights arguably guaranteed by this Court in Brotherhood of Railroad Trainmen, or whether those injunctive probations are contrary to the this Court’s subsequent opinion in Mine Workers versus Illinois State Bar Association.

Alternatively, the petitioner contends that the proceedings after remand on the first appeal by Michigan Supreme Court were such as to deprive the union of its constitutional right the procedure of due process.

This case begun with the filing of a complaint in 1959, and basically that complaint paraphrases some of the language and the holdings of the Illinois Supreme Court in the opinion of Brotherhood of Railroad Trainmen.

In fact, one of the defenses of the Brotherhood to the complaint was at the case was moot because of the fact that it had complied with the decision of the Illinois Supreme Court.

In that defense, the Brotherhood alleged that the State Bar of Michigan had presented evidence before the Illinois Supreme Court.

That allegation was not denied in the reply and indeed during the trial in 1961, the counsel for the State Bar at appendix 39 and 40 stated that its evidence and its charges were presented to the Illinois Supreme Court, and that the Illinois Supreme Court held that there should be no further proceeding on those charges.

Nevertheless, before the Illinois Supreme Court opinion by its terms became effective, which was to be on July 1, 1959, the State Bar filed this complaint.

Basically, the State Bar claimed that the Brotherhood had a plan of recommending and urging that its members seek legal advice, and not only seek legal advice but retraining of the union counsel.

The union admitted such in its answer.

The State Bar alleged that a majority of such Federal Employers’ Liability Act cases went to the union counsel.

The union denied that allegation, but did admit that in some cases but not in all and they went to such counsel.

The possibility of a consent decree proving fruitless, the case went to trial.

And at trial, the counsel for the State Bars said the only issue in the case was whether or not large numbers of cases went to the legal counsel of the union.

So, he proceeded to prove through only one witness, a man by the name of Walsh who was employed by the Association of American Railroads Claims Research Bureau, and who in such employment received reports from other railroads as to how many cases, the appellee cases, were handled by various attorneys where the residents were Michigan residents.

The witness also testified in appendix 102 that since 1953, the Association of American Railroads had been the chief investigating agency for the State Bar and had been in the Michigan state seeking evidence.

After the hearing, briefs were filed and the 1962 Virginia decree was handed down by the chancellor of the -- of its Chancery Court of the City of Richmond.

After the briefs, there was a 1962 injunction decree issued in this case.

An appeal was taken by the Brotherhood to the Michigan Supreme Court.

While the appeal was pending, this Court handed down its opinion in 1964 Brotherhood.

The Michigan Supreme Court after being informed of the opinion of this Court, reversed and remanded, and specifically stated that permission for the amendment of the plaintiff’s bill to seek, if it be so advised, relief not inconsistent with this Court’s opinion in 1964 Brotherhood.

The next action of the trial court was a motion for a judgment in accordance with a 1965 injunction decree of the city court of Richmond and that motion was not acted upon.

In 1966, the Virginia Supreme Court entered its opinion on the appeal from the 1965 decree and reversed the part of that opinion which attempted to draw a line between solicitation, and between recommendation and urging.

The State Bar of Virginia, petition for a certiorari to this Court and the Brotherhood of Railroad Trainmen opposed the petition.

The petition was denied.

In 1967, this Court handed down it mine worker’s decision.

And following that decision, the trial court in this case handed down the 1968 decree which is now before this Court.

In handing down that decree, the trial judge in this case stated that the Virginia Supreme Court’s reading of this Court’s opinion in Brotherhood was sufficient to warrant the promulgating of the decree in this case.

As to the Mine Worker’s decision which was brought to its attention, it said that it’s irrelevant that the Mine Worker’s decision dealt only with the financial connection.

There was then a appeal to the Supreme Court of Michigan, and that is that judgment immediately below.

By 4 to 3 decision, the Michigan Supreme Court affirmed the judgment.

It did not look at the injunctive provisions.

Instead, it proceeded upon a analysis of this Court’s 1964 Brotherhood opinion as it was stated by the Virginia Supreme Court.

Accepting that analysis, it stated that it would defend its understanding of the tenants of equal justice under law if the Brotherhood were to receive more relief in Michigan then it had already obtained in Virginia.

Indeed, it said that absence a specific order from Washington it would not enter such an order or a judgment.

The dissent agreed with the contention of petitioner here.

It stated that the decree could not be entered because of this Court’s decision in 1964 Brotherhood, and said even if that were not so, it would say that the Mine Workers’ case was sufficient to bar the entry of the decree.

And finally under Michigan law, it stated that the proofs was stale, the pleadings was stale and that there was no clear and convincing proof of any violations, and therefore under Michigan law, it should not have entered.

We then turn to the first question of this case, whether or not that this decree is contrary to this Court’s opinion in 1964 Brotherhood.

In that opinion as in many other opinions dealing with free speech, this Court has consistently stated a rule of law which was ignored in this case.

The burden this Court has stated and very clearly and very directly so far as I’m concern is upon the State Bar to prove substantive evils.

In this case, there was no proof of any substantive evil, indeed, there was no updating of the complaint or any other updating of the proof.

The proof in this case relates at the very latest to the year of 1960.

When the petitioner here requested that there be an amending of the complaint, so that there could be a sharpening of the issues, that request was ignored despite the language in the first Michigan Supreme Court opinion which stated that permission was granted for leave to amend.

In the second Supreme Court opinion where the -- that court stated in the majority opinion that the right to amend was an alternative and that the State Bar did not have to avail itself of the accorded right to amend, indeed, it didn’t avail itself of the accorded right to amend.

It’s the counsel at one point stated that he did not choose to amend.

Until the Michigan Supreme Court was at spoke, it was unknown to this petitioner that there was any alternative whatsoever.

Assuming that there was such an alternative, it would seem that this would be a denial of due process.

Turning again to the Brotherhood case, that case held at pages 6 and 7 of the United States report that this case did not involve ambulance chasing, it did not involve unauthorized practice, it did not involve the commercialization of the legal profession.

The contention of the respondent and of the court below seems to be directly contradictory to that language of this Court.

Chief Justice Warren E. Burger: Is there anything in this record that would indicate the members would not be free to go out and engage their own counsel of their own selection?

Mr. John J. Naughton: No, there is not Your Honor.

In the 1964 Brotherhood opinion, we asserted that there were and in fact, the Virginia case in one of its findings held that all of the cases or substantially all of them were channeled through legal counsel.

In this case, the allegation was the majority, but the proof failed to prove any majority and the finding was that a large number.

And in fact, the finding does not really show a large number.

At page 168 of the appendix, there is a summary sheet which is plaintiff's exhibit 17 which shows a summary of the evidence presented through the Association of American Railroads.

And as Your Honor will note the bottom line deals with the year 1960, the latest year and shows a total number of FELA cases.

34 of those, in the second column, only 6 were handled by the legal counsel, 20 by Michigan attorneys and 8 by other attorneys.

The only substantial amount of cases shown is in the first line which is July 1, 1953 to March 31, 1955.

There, is a 197 cases of which a 126 supposedly went to the firm, to the legal counsel firm, but when the data on which that summary is based is examined, it's seen that this numbers of cases does not deal with 53, but instead deals with the great number of years.

As a matter of fact, the plaintiff’s exhibit 4 I believe it is; plaintiffs’ exhibit 3 shows great numbers of cases which were undated.

And then, shows for the legal counsel 45 settlements, 46 settlements, 47 settlements, and 48, 49, 50, 51, 52, and then goes into the 53 settlements.

Now reason for that was that in 1953, the Association of American Railroads formed this claims research bureau which went out to obtain evidence against various counsel.

And as a starter, they had these cards signed in from the various railroads so the first cards that came in dealt with many another years outside of the years within the exhibit of 53 through 55.

It’s also I believe note worthy that primarily those earlier years are shown are the legal counsel cases.

Any cases by other counsel are not shown by year.

And so, it creates a problem is to whether this is selected evidence or not, but be that as it may and we always have had in this Virginia case and in the Michigan case, questions as to the substantial evidence backing any of the injunctive provisions.

The fact remains that the State Bar's own exhibits show immediately preceding the issuance of the first injunction, a very minor number of cases handled by the legal counsel’s firm.

I don’t’ think that I need to belabor the proposition that there has been shifting of the burden here by the Michigan Supreme Court and by the court below.

If I have not adequately set it out in my brief, I am quite sure that the brief for the amicus, the FLCIO clearly and succinctly shows what is required here.

I think that I would like to particularly note page 7 of the that brief where the amicus states that the restrictions on group legal practice plans must be justified by proof, tending to show that the practice which is enjoined is quote “an oppressive, malicious or aberratious use of the legal process for purely private gain,” quoting this Court’s opinion in NAACP versus Button, and then the commercialization language from the Trainmen opinion.

I think that being the standard that there is a complete failure of proof in this case whether it’s judged as of 1960, or as of 1968 when this injunction was issued.

That seems also to me that the Mine Workers decision adds a further reason why this case should be reversed.

In Mine Workers as this Court were recall the union counsel was on a salary and all of the cases went to him without any further compensation.

Indeed, the evidence showed that the fact that he filled out an injury form was sufficient to cause the legal counsel to begin processing the workmen’s compensation claim in that case.

That case also was completely an unauthorized practice of law case, and that seems to be the principle defense of the State Bar as to the injunction here is that we are engaged in the unauthorized practice of law, although, there was no such allegation in the only complaint file below.

That Mine Workers case, I think is also particularly relevant on the first injunctive provision about which we complaint.

The injunctive provisions are set out at appendix 176 and 177, also set out various points in the brief.

The first provision enjoined the union from giving or furnishing legal advice.

Now, it just seems to me that for reason which we state in our brief at pages 23 and thereafter that this is not part of the Brotherhood’s plan.

The Brotherhood’s plan is exactly opposite.

It’s not the unauthorized practice of law.

The union is not practicing law.

The union is sending the cases to the union lawyer and saying that the lawyer practices law.

This is the practice of law.

It’s a new definition of the unauthorized practice of law.

Typically, that arises when the corporation itself acts through lawyers and the lawyers are merely agents.

In this case, there is no doubt that a retainer contract is entered the too between the injured employee and the lawyer, and then that, that becomes a simple handling of a case by a lawyer-client relationship.

There’s been no proof either in Virginia or here that anything else occurs.

The second provision it seems to me also is such that it would strike as it could be interpreted, and that’s an ambiguous Section against the operation of this plan.

That prohibits informing any lawyer or lawyers that an accident has been suffered by a member in furnishing the name and address for the purpose of obtaining legal employment for any lawyer.

And this I think, is part and parcel of the Brotherhood’s plan at it reads.

As Virginia interpreted, it seems to be a method of subverting this Court’s language in Trainmen.

In Trainmen, this Court's stated that of course, counsel had the same right to accept the cases that the union had in channeling the cases.

Virginia recognized that language, but stated that it did not interpreted as such that would permit the lawyer to do more than accept and rather intend it to bring injunction actions or disbarment action against any lawyer who did anymore than accept, again, it seems to me that it should be stricken down.

The third provision deals with the defraying of expenses; that is from stating that they will suggest or defray.

I don’t know that this is part of the Brotherhood plan.

There’s no evidence in the record as to it in any event and finally under Illinois law which is the state which the legal counsel in this case practices, that’s permitted after a retainer is obtained.

The fourth provision from controlling directly or indirectly to fees charged, it seems to me they have stricken down by the Mine Workers case because you can place a lawyer on a salary and not be guilty of any violations.

Constitutionally, it would seem to me that you have the right to do less than that, and that is to do what the union used to do in this case to limit the counsel’s fee to 25%.

The fifth injunctive provision is a rather peculiar one.

It prohibits accepting or receiving compensation of any kind directly or indirectly for the solicitation of legal employment for any lawyer.

Now, the Virginia Supreme Court said that there could be no decree which prohibit solicitation.

But yet, it let this provision stand which does not prohibits solicitation, but prohibits solicitation plus the receiving of compensation as I read it, it would seem to me that there is no evidence in the record as to this and it would seemed to me to be a most peculiar ambiguous Section that should be stricken down.

The remainders of these provisions are such that they deal with financial connections of the some sort.

I would like to particularly note that the last one from sharing in any recovery for personal injury or death by gift assignment or otherwise is brand new one.

It was not in the 1962 Virginia decree.

It was added in 1965 by the chancellor for some reason because in that case, there was no additional evidence taken either.

Now, turning to the question of the evidence in this case, we have to generally deal with the Michigan statute which I suppose is that basis on which this injunction is issued.

It’s the -- the only thing in the complaint under which they justify the issuance of the 1961 injunction, on page 32, we set out the interpretation of that statute by the Supreme Court of Michigan in Hightower versus Detroit Edison Company, which the court said that the purpose of the act was to discourage the practice commonly known as ambulance chasing.

And then stated that there were four separate indications of it, full meaning litigation, subornation of perjury, molting of innocent persons by judgment upon manufactured causes of action or defrauding of injured persons, having proper causes of action, but ignoring their legal rights by means of contracts which retain exorbitant percentages of recovery.

Now in this case, the percentage of recovery in the Illinois case was the 25% than prevalent in the Brotherhood counsel.

And that was stricken down by the Illinois court because it was undercutting of fees rather than charging of exorbitant fees.

So, it seemed to me under the Michigan Supreme Court's reading of that statute, there is absolutely no evidence whatsoever that there was any violation of the statute.

But even assuming that the Michigan statute can be read to cover the facts in this case which strongly submit in this Court’s opinion in NAACP versus Button with dealing with a similar statute would require it striking down.

Justice John M. Harlan: Is there a limitation in Michigan on the amount of contingency statutory reputation or the court rule?

Mr. John J. Naughton: Not that I know off, Your Honor.

Justice John M. Harlan: Not such that we have in New York?

Mr. John J. Naughton: No.

Not such as you have in New York.

The remainder of my argument, I would like to devote to the problem which it seems is raised in this case by the reaction of the courts after remand.

That problem is the problem of whether the union after remand received procedural due process.

After remand, if the Brotherhood wished an updating of the complaint, an updating of the proof.

Indeed, it wished an opportunity to present some evidence because as the record shows, in the 1961 hearing, after the close of the State Bar’s evidence, the Brotherhood rested without presenting any evidence upon the ground that there was no prima facie showing of any reason for an injunction.

So, we are now faced with this injunction which was taken from Virginia and as to that injunction, we submit that there is no evidence.

There is no contemporaneous pleading.

There are no allegations of the provisions in the injunction.

And surprisingly when they copied the Virginia injunction, they did not copy the findings of facts, so if you have an injunction without any findings of fact.

The findings of facts that now remain in Virginia are the finding of facts that were made in the 1962, the decree.

The court there took the position of this Court’s judgment did not affect the findings of fact.

So therefore, you have the problem there that the findings of fact are directly contradictory of many of this Court’s holdings.

The findings of fact in the 1961 Michigan decree do not apply to these particular injunctive provisions.

On this procedural due process point, we would submit that the Ruffalo case by this Court requiring a fair notice of reach of the procedure and also the precise nature of the charges is directly irrelevant.

We would also submit that the Wilmer case by this Court requiring a hearing so that there could be a rebuttal of any charges is directly irrelevant, and we would submit that the general injunctive law is status stated in our brief is directly relevant here and as accordance with the conditional standards which this Court has promulgated in the Brotherhood and in Mine Workers. Thank you Your Honor.

Chief Justice Warren E. Burger: Thank you.

Mr. Ruegsegger?

Argument of A. D. Ruegsegger

Mr. A. D. Ruegsegger: Mr. Chief Justice and may it please the members of this Court.

We have in this case I believe the interesting issue as to the constitutionality of a -- of the decree below which decree is exactly duplicative of the final decree in the Virginia Brotherhood case, the decree of the state court of Virginia.

The Virginia Supreme Court decision in 207 Virginia, entirely was concerned with the interpretation and the consideration of what it considered were the findings and opinion of this Court in this Court’s Brotherhood decision.

Now, from the decision of the Virginia Supreme Court, the Virginia State Bar made an application to this Court for certiorari as my brother indicated which was supposed by the Brotherhood and that petition was denied.

The interesting thing I believe and the procedural steps in the two cases, I think need a little consideration in order to keep them straight and I have found it helpful to me to put in chronological order, side-by-side the occurrences in the Michigan case, in this case here and in the Virginia case.

Justice Hugo L. Black: What’s the name of the Virginia case?

Mr. A. D. Ruegsegger: The name of the Virginia case is exactly the same as the Brotherhood, namely, State Bar of Virginia versus the Brotherhood.

I assume Justice Black that when you say the name of the Virginia case you’re talking about the title before the Virginia Supreme Court?

Justice Hugo L. Black: I’m talking about the one you were talking about?

Mr. A. D. Ruegsegger: Well --

Justice Hugo L. Black: You said this was a kind of a duplicate of it?

Mr. A. D. Ruegsegger: Yes.

Justice Hugo L. Black: I just want its name in --

Mr. A. D. Ruegsegger: Alright.

The name is Brotherhood of Railroad Trainmen versus Commonwealth of Virginia.

Justice Hugo L. Black: Page what?

Mr. A. D. Ruegsegger: It is 207 Virginia, page 182, also, 149 S.E.2d 265.

Now, --

Unknown Speaker: Have you the citation to our denial --

Mr. A. D. Ruegsegger: Your Brotherhood case?

Unknown Speaker: -- our denial of certiorari on that Virginia?

Mr. A. D. Ruegsegger: Yes.

Unknown Speaker: What is that?

I don’t find it in the briefs.

Justice William O. Douglas: It was 1967 I think?

Mr. A. D. Ruegsegger: That was on March 6, 1968.

Justice William O. Douglas: ’68?

Mr. A. D. Ruegsegger: No, I just -- pardon me.

Virginia State Bar’s petition to this Court for certiorari denied on January 16, 1967, 385 U.S. 1027, 17 Law Edition 2nd 675.

Unknown Speaker: Thank you.

Mr. A. D. Ruegsegger: I would be happy.

I have made some copies of this chronology of the Michigan case and the Virginia case, and I would be happy to give these to Your Honors or send them in later with the copies to counsel.

I found it very helpful in my consideration of this case to have the steps that occurred from time to time.

Now --

Chief Justice Warren E. Burger: You may lodge it with the clerk --

Mr. A. D. Ruegsegger: Pardon?

Chief Justice Warren E. Burger: You may lodge with the clerk and I see you have given one --

Mr. A. D. Ruegsegger: Yes.

Thank you Your Honor.

Now, in both the petitioner’s application for certiorari in this case, and again in its brief in this case, complaint is registered that the decision of the Virginia Supreme Court did not comport with the holding of this Court in this Court’s Brotherhood case, and that because of what occurred in the State of Virginia after the Brotherhood case, the Virginia case went back to Virginia.

It has been deprived of a review of the Virginia Supreme Court’s decision.

And the reason for that, petitioner says, after the Virginia Supreme Court rendered its decision in 207 Virginia, in which -- which was a decision that considered in the light of this Court’s holding in opinion in Brotherhood.

It considered each one of the injunctive provisions of the second or 1965 injunction of the Richmond Chancery Court, and the entire verbatim injunction of the Richmond Chancery Court of 1965 is set forth in the -- in footnote 4 in the opinion of the Virginia Supreme Court, and certain provisions of those injunctive paragraphs are put in italacies for emphasis and the sum and substance of the Virginia Supreme Court’s decision was to strike from the 1965 injunction which is quoted in footnote 4 as being repugnant to this Court’s holding in Brotherhood.

Justice William J. Brennan: May I ask, was that chancery division injunction entered on our remand of the case in the Brotherhood?

Mr. A. D. Ruegsegger: Yes.

Justice William J. Brennan: In the proceedings in the chancery court then, when on our remand under Justice Black’s opinion in 377?

Mr. A. D. Ruegsegger: Actually yes.

What actually happened was on your remand, it went back to the Virginia Supreme Court.

They did nothing with it, but remanded it down to the Virginia -- I mean, the Richmond Chancery Court.

Justice William J. Brennan: Right.

Now, what was the record, that that was a new record made in the chancery court or was that action then on the initial record that we had considered when we have 377 here?

Mr. A. D. Ruegsegger: I’m not sure that I can answer that.

On the initial record, was it Mr. Naughton?

I’ll accept the statement, but in any event, the Richmond Chancery Court then entered the 1965 decree which then was appealed too.

Justice William J. Brennan: And it -- obviously the chancery court thought the decree it entered was consistent with our opinion on the remand?

Mr. A. D. Ruegsegger: Yes.

And interesting enough, the Richmond Chancery Court decree, the court’s decree felt that there was nothing in this Court’s opinion that prevented a restraint against solicitation.

And so in that chancery court’s decree, they tried to draw to find distinction between recommendation and solicitation.

And that was one of the subjects that the Virginia Supreme Court been spent considerable time in determining whether or not that distinction, set forth in the decree of the chancery court, was consistent with this Court’s holding.

And the Virginia Supreme Court then came to the conclusion that that entire provision should be stricken, saying that whatever you call it, recommendation or solicitation, we think that that goes beyond the constitutional limitations that's set forth in this Court’s decision in the Brotherhood.

Justice Carrico of the Virginia Supreme Court dissented and felt that this Court did not mean that in its -- in your Brotherhood’s decision, and he hopefully will find that someday, that matter would be decided and I think, this is the case that it will be -- that the -- the other interesting thing about this case to me is --

Justice William J. Brennan: Well that -- is that before us?

Mr. A. D. Ruegsegger: Pardon?

Justice William J. Brennan: Is that before us?

Mr. A. D. Ruegsegger: Well, that was I was about to come to.

Justice William J. Brennan: May I ask it this way?

Whether provision which was stricken by the Virginia Supreme Court; that does not appear in this Michigan --

Mr. A. D. Ruegsegger: No, it does not.

Justice William J. Brennan: Well then, how can that provision be before us for consideration?

Mr. A. D. Ruegsegger: Perhaps only inferentially in a determination as to whether or not the injunctive provisions that are in the lower court’s injunction here, being exactly duplicative of the final injunction in Virginia, whether or not that there’s the constitutional abandonment of propriety and I think to that extent --

Justice William J. Brennan: What I mean, I gather no effort was made in Michigan to have the trial injunction -- court’s injunction there include that provision which --

Mr. A. D. Ruegsegger: You are --

Justice Byron R. White: -- the Virginia Supreme Court had deleted.

Mr. A. D. Ruegsegger: You are absolutely right, Your Honor.

The point that I was endeavoring to cover and indicate was and is that counsel for the petitioner here has steadfastly claimed that the Virginia Supreme Court’s interpretation of your Brotherhood decision was improper, and that they have been deprived of a review of that decision.

Because of the fact that after the Virginia Supreme Court sent the case back down to the chancery court and the chancery court then rendered its 1965 decision and then after the Virginia Supreme Court rendered its decision in 207 Virginia, it then remanded that case back down to the chancery court of Richmond and said “Here it is, take whatever proceedings you consider appropriate.”

And so, the chancery court then entered a new third injunctive decree exactly in the terms that the Virginia Supreme Court should -- said should be entered.

The Brotherhood then made an application for leave to appeal to the Virginia Supreme Court from that injunction which was denied.

The Virginia Supreme Court saying, “No, we won’t entertain this because what you are in effect doing is attempting to appeal to us from our previous decision.”

And so, the point is made by the petitioner that it has been deprived really of a review of its position that the decision of the Virginia Supreme Court is consistent with and in conformity with your decision in Brotherhood.

Now, because of what occurred in Michigan, when this Court accepted certiorari in the Brotherhood case and our case was then on its way to and had landed in the Michigan Supreme Court, and because the issues in the Brotherhood case where very similar to at that time very similar to the Michigan case, the Michigan Supreme Court in a short opinion remanded it to the Jackson circuit court awaiting the -- to await the decision of this Court.

And then because of the many things that occurred in Virginia after the decision of this Court in Brotherhood, it took about four years for these things to occur in Virginia until a final injunction in Virginia was finally on the books and records.

Then, that took about four years and that’s the reason why this case was delayed.

The length of time that it was and why the evidence, up to the year 1960 is stale according to what the petitioner contends in this case and a decision was made after the case came back to the Jackson Circuit Court and after the final Virginia decree had become final, a decision was made by the general counsel of the State Bar of Michigan working with Mr. Kelly who had handled this case in collaboration with the general counsel or State Bar not to introduce any additional evidence, but to ask the circuit judge based upon the record before -- made before it at the original hearing to enter a decree exactly duplicative of the final decree in Virginia.

Justice John M. Harlan: So, there is a ten-year gap in the --

Mr. A. D. Ruegsegger: There is practically a ten-year -- you are absolutely right Mr. Justice Harlan.

Justice John M. Harlan: Does the record indicate anything that it might have been supplied -- suggested this could have been supplied to fill that gap --

Mr. A. D. Ruegsegger: I don’t think the record indicates that, no.

Now, this case presents the opportunity for this Court to do three things which I have indicated in my brief and that is to resolve the petitioner’s contention that the Supreme Court decision -- the Virginia Supreme Court’s decision did not comply with the holding of this Court in Brotherhood, and it also presents this Court with the opportunity to give to the petitioner the review that it claims it has been deprived off because of procedural problems.

And thirdly, to clarify and said it rests the concern on the part of some justices, specifically Justice Carrico of the Virginia Supreme Court and a large segment of the Bar --

Justice William J. Brennan: May I ask just one more?

Mr. A. D. Ruegsegger: Yes.

Justice William J. Brennan: Do you know whether when leave was denied by the Virginia Supreme Court to appeal to that court from the final judgment entered by the Richmond Chancery Court, from that denial of the Virginia Supreme Court did the union attempt to certiorari here?

Mr. A. D. Ruegsegger: It did not and the reasons for that, I do not know.

I can only surmised, Mr. Naughton can undoubtedly tell you what I imagine it was because earlier when the Virginia State Bar made an application for writ of certiorari here, the union opposed that.

Justice William J. Brennan: And the union did not cross petitioned at that time so far as --

Mr. A. D. Ruegsegger: So far as I -- you know -- lastly and in these three areas that I’ve already indicated and in this last area, we agree absolutely with the petitioner’s position that this Court should speak out in a very definitive terms as to the lengths that a state may go in regulating the practice of law in these areas, particularly in light of new Rule 2-103 d5 of the new professional code -- the new code of professional responsibility, because that provision gives the specific or sets forth the specific exception, consistent with constitutional interpretations and referring -- it is specifically referred to there, the issues and the questions existing here by reason of this Court’s holding in Button and Brotherhood and Mine Workers.

Justice William J. Brennan: Incidentally has that code been adapted in Michigan?

Mr. A. D. Ruegsegger: I’m not sure just exactly how much I put in my brief on that, but I should advise the Court that --

Justice William J. Brennan: Well, you say, it’s not yet acted?

Mr. A. D. Ruegsegger: It is not yet acted upon.

We presented to the Michigan’s -- in Michigan, it has to be adopted by the Supreme Court.

We had a special committee of the State Bar review the code and they presented to the Board of Commissioners their recommendations that it be adopted with two or three limitations, not in this area.

And we had a meeting with the full court in the early part of October and requested that the court adapt the code as we had recommended with two slight exceptions not material here.

Justice John M. Harlan: Is it reasonable for you in oral argument that (Inaudible) would summarize the portions of the decree whereas the difference in opinion?

Mr. A. D. Ruegsegger: I’m not sure that it is because if I understand the positioner -- the petitioner’s petition that every one of the provisions, generally, they make the claim now that they’re vague and they claim that in -- to comply with the provisions of the decree would chill a very constitutional rights under the First Amendment.

And I think that counsel would forthrightly say that he feels as they have set forth in their brief that every one of these provisions, because of the language of them, restrict the full operations of the Brotherhood’s plan, and that is the very thing that we are concerned about because we feel that the full operations of the plan just naturally result in solicitation of the FELA cases.

And we feel that it is absolutely contrary to what the great large segments of the Bar have always considered as improper, and we feel that each one of these provisions that are exactly the same and have been in effect in Virginia since 1966 when the final decree was finally laid on the books there has been no chilling or restraint upon the rights of the members of the Brotherhood.

And that therefore, this Court should affirm the decision of the court -- of the court below.

Justice William J. Brennan: I gather that the Michigan Supreme Court has not yet given you an answer after your session with --

Mr. A. D. Ruegsegger: That is correct.

I guess I didn’t conclude my answer.

I meant to say that undoubtedly, the reason for that is this, if I may say so.

We had a change of two members on the Michigan Supreme Court as of January 1, including a change in the Chief Justice.

And our new Chief Justice had voiced his feelings somewhat strongly during our meeting with them in October as having some concern about some provisions of the code not material here, but I gather that because of that, there has been a delay in making a decision on the code.

Thank you, Your Honors.

Chief Justice Warren E. Burger: Thank you Mr. Ruegsegger.

Mr. Naughton, you have five minutes remaining.

Rebuttal of John J. Naughton

Mr. John J. Naughton: May it please the Court.

Justice William J. Brennan: Would you mind Mr. Naughton, you did not cross petition when the Virginia State Bar brought its petition here, did you?

Mr. John J. Naughton: That’s correct, Your Honor.

Justice William J. Brennan: And you did not seek the cert here when leave was denied to appeal from the final decree finally entered in the Richmond Chancery Court?

Mr. John J. Naughton: That's correct also, Your Honor.

My reasons for that were that I thought both of them were really not right for decision by this Court at first because I didn’t believe it was a final judgment, although I was told there it was.

And then the second time, it was a technical since the court below claimed that it was not appealable under Virginia law.

In any event, the Virginia Supreme Court interpretation of this Court’s opinion, it seems to me to be it’s interpretation and I would not presume to suggest to this Court that it’s at all definitive reminding on it.

The courts below seemed to think that it was that that court’s opinion and your opinion is the last word, I don’t believe so.

I would like to mention that in regard to the rehearing in Virginia when we came back down, there was a new chancellor, and the chancellor who heard the first Virginia case in 1962 and issued that decree had retired and the 1965 decree and the 1967 decree were entered by a chancellor who did not hear the evidence.

The question as to the new code of professional responsibility, I think is pertinent here.

I don’t feel I’ll go quite as far as my position was represented by the State Bar, that new cannon says that it’s a lawyer’s duty to see that legal business is widely disseminated and the actual language is that a lawyer should assist the legal profession fulfilling its duty to make legal counsel available.

However, it does have a caveat in it that legal services claims while you can tell the people that they have lawsuits, you must not take the case unless you’re constitutionally protected.

It has been criticized and saying that the Bar Associations are willing to recognize their perspective client’s constitutional rights, but no other rights.

I think that for that reason, this Court should be clear in delineating what the constitutional rights of the brother here and of other legal service group says in this case.

The question as to no chilling in Virginia, I don’t -- there’s no evidence in the record, of course, as to whether there’s any chilling in Virginia or not, the Virginia case in 1962 was not based on any evidence as to Virginia.

I don’t know if Your Honors will recall it, but I do very well that the evidence was from other states in the union.

There was nothing said about anything in Virginia.

At that time, there was no legal counsel in Virginia.

The legal counsel involved was situated in Baltimore.

Since that time, there has been a legal counsel appointed in Virginia.

The question is to whether the assertion of legal rights is chilled in Virginia’s -- or I would suggest that in any event, a very peculiar one and only may be a Virginia lawyer would know just exactly whether there was any chilling or not.

My experience is that in Virginia showed that the recognition of the legal rights of individuals was certainly much less than Illinois, and at many times, I was amazed to hear the constructions of ethical cannons that were promulgated in the Virginia case.

All in all, I feel that this case through many hearings and arguments has gone on for a great number of years.

And for that reason, I would respectfully submit to this Court that the proper action here should be a reversal without any remandment and an ending of this case.

Justice John M. Harlan: Without any what?

Mr. John J. Naughton: Without remandment.

Thank you.

Chief Justice Warren E. Burger: Thank you Mr. Naughton.

Thank you gentlemen.

The case is submitted.