Cuomo, Frank, Jr.

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Volume 67 | Issue 1 Article 6December 1964Attorney and Client--Union Programs To ObtainLegal CounselFrank Cuomo Jr.West Virginia University College of LawFollow this and additional works at: https://researchrepository.wvu.edu/wvlrPart of the Labor and Employment Law CommonsThis Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been acceptedfor inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contactian.harmon@mail.wvu.edu.Recommended CitationFrank Cuomo Jr., Attorney and Client--Union Programs To Obtain Legal Counsel, 67 W. Va. L. Rev. (1964).Available at: https://researchrepository.wvu.edu/wvlr/vol67/iss1/6CASE COMMENTSAttorney and Client-Union Programs To Obtain Legal CounselThe Brotherhood of Railroad Trainmen established a Depart-ment of Legal Counsel whereby sixteen attorneys regionally locatedthroughout the United States were selected and recommended to itsmembers involved in railroad personal injury cases. The VirginiaState Bar obtained in the state court an injunction restraining theseunion activities. Held, the injunction denied members rights guar-anteed by the first and fourteenth amendments. Thus, a unionmay maintain and carry out a plan for advising members who areinjured to obtain legal counsel and for recommending specificlawyers. Brotherhood of R.R. Trainmen v. Virginia ex rel. VirginiaState Bar, 84 Sup. Ct. 1113 (1964).The instant case rejects a history of decisions adverse to unionprograms to provide competent and reasonably priced legal servicesfor members injured on the job and accepts the union program asamenable to rights guaranteed by the first and fourteenth amend-ments. The Court balanced individual rights against state regula-tion of law practice and noted that "[I]n regulating the practice oflaw, a state cannot ignore the rights of individuals secured by theConstitution." These amendments, the Court observes, give guaran-tees of free speech, petition and assembly, and the right to assemblefor the lawful purpose of helping and advising one another inasserting "rights Congress gave them in the Safety Appliance Actand the Federal Employers Liability Act.... ." Brotherhood of RR.Trainmen v. Virginia ex rel. Virginia State Bar, supra at 1116.It thus appears that the Court has relaxed the application ofestablished Canons of Professional Ethics to group programs. Inpronouncing the union program as not being a commercializationof the legal profession, the Court rejected references to the Canonsof Professional Ethics by the Virginia State Bar proscribing respec-tively the stirring up of litigation, control or exploitation by a layagency of the professional services of a lawyer, and aiding theunauthorized practice of the law. See Canons 28, 35, 47.The principal case on which the Court relies is NAACP v. Button,371 U.S. 415 (1963). In this case, the State of Virginia unsuccess-fully attempted to enjoin the NAACP from advising prospective[ 66 ]1Cuomo: Attorney and Client--Union Programs To Obtain Legal CounselPublished by The Research Repository @ WVU, 1964CASE COMMENTSmembers to obtain the services of selected attorneys employed bythe Association. In pointing to the NAACP case, the Court notedthat the organization had amply shown its activities to fall withinthe protection of the first amendment, but that the state failed toshow any substantial regulatory interest in the form of substantiveevils flowing from the NAACP's conduct. The dissenting justicesin the instant case contended that the NAACP case was inappositebecause it dealth with a "form of political expression" to secureconstitutionally protected civil rights through the legal process.The dissent further reasoned that "[P]ersonal injury litigation isnot a form of political expression, but rather a procedure for thesettlement of damage claims . " Here the question involvessolely the regulation of the profession, a power long recognized asbelonging to the state. . . ." Brotherhood of R.1. Trainmen v.Virginia ex rel. Virginia State Bar, supra at 1118-19.The courts and the bar have long recognized the acute problemconcerning the desire of organizations to assure competent repre-sentation in a society where the need for legal services is growingand many individuals are unacquainted with the laws and unac-customed to seeking legal advice. Llewellyn, The Bar's Troubles,and Poultices and Cures?, 5 LAw AND Co~rxm . PROB. 104 (1938).However, the judiciary and the bar have always insisted that thesolutions conform to the ethical principles formulated in theAmerican Bar Association's Canons of Professional Ethics. AppositeCanons 27-forbidding advertising and solicitation 34-proscribingdivision of fees 35-barring control or exploitation of a lawyer's serv-ices by intermediaries, together with the judicially imposed auxiliaryprohibition of unauthorized practice of the law by layment aresoundly directed against the commercialization of the professionalidea.Historically, the courts have considered the benefits to unionmembers as immaterial so long as (1) a lay intermediary operatedin derogation of the attorney-client relationship, or (2) a lay entityemployed methods of solicitation for an attorney otherwise ethicallyavailable to him. In re Shoe Mfr's Protective Ass'n, 295 Mass, 369,3 N.E.2d 746 (1936). But cf. In re Thibodeau, 295 Mass. 374,3 N.E.2d 749 (1936). The sensitive area has been with the lastclause of Canon 35: "[Blut this employment should not includethe rendering of services to the members of such organization inrespect to their individual affairs." This provision is obviously in1964]2West Virginia Law Review, Vol. 67, Iss. 1 [1964], Art. 6https://researchrepository.wvu.edu/wvlr/vol67/iss1/6WEST VIRGINIA LAW REVIEWfurtherance of keeping the attorney-client relationship personal,direct, and not subject to any lay intermediary. The Canon doesnot specifically exclude counsel for a corporation or organizationfrom representing its individual employers provided such employ-ment is not the result of improper solicitation, and provided suchrelationship is personal and direct and is not paid by the corporationor association. DI)EmmB, L Axn Ermcs 162 (1954).Many believed that the Canon would not prevent labor unionsfrom finding lawyers to advise their member. See Labor UnionLawyers, 5 IND. & LaE. RE x. REv. 361 (1952). In an Illinois case,where the railroad had settled directly with the employee, the courtsaid that the railroad's defense that the plaintiff's employment badbeen obtained by fee splitting was "unworthy of the able lawyerswho made it." Ryan v. Pa. Ry., 268 Ill. App. 364, 373 (1932). Intwo other cases, however, In re O'Neill, 5 F. Supp. 465, 467 (E.D.N.Y. 1933); Hildebrand v. State Bar of Cal., 36 Cal. 2d 504 (1950),involving the discipline of lawyers, the court censored participationin the plan. In the California case, there was strong dissents inwhich it was said that the plan "in no way lowers the dignity of theprofession," being "nothing more than a proper joining of forcesfor the accomplishment of a proper legal objective of mutual aid."The result of the instant case illustrates the immediate conflictbetween the need for inexpensive, competent legal services and thedanger which threatens when intermediaries are interposed be-tween attorney and client. The solution to the problems nowpresented calls for active participation by the legal profession.Perhaps one remedy would be to hasten lawyer referral plans andthe organization of legal aid clinics. 50 A.B.A.J. 841 (1964). Withsuch active participation comes the advantage that the bar associa-tion can effectively police activities and arrangements. This wouldobviate the need for any change in the American Bar Association'sCanons of Professional Ethics. 64 HAIIv. L. REv. 1374 (1951). Ifrecommendations concerning the choice of council are made bythe union, such recommendations should include a representativegroup of attorneys. In relation to this concept, Informal OpinionNo. 469 of the American Bar Association's Committee on Profession-al Ethics upholds the ethicality in an employer, association, orunion agreeing to pay the legal expenses of a union member so longas the selection of the attorney is left to the employee or member[Vol. 673Cuomo: Attorney and Client--Union Programs To Obtain Legal CounselPublished by The Research Repository @ WVU, 1964CASE COMMENTSand so long as he has no responsibility to the employer, association,or union. 2 W. VA. BAR NEWs 161, 166 (1963).Although the balance of interests in the instant case was resolvedin favor of constitutional rights, the courts should be quick to notethat a myriad of unsolved problems may now have been engenderedbecause of the general relaxation in the application of the Canonsof Professional Ethics to the union program. Will divergent inter-ests between organization and members create a risk that theattorney might digress from the undivided pursuit of his clienfsinterests? Will the nature of a case result in the selection of clientswhose claims afford the organization an opportunity to retain theconfidence of its members through extraordinary recoveries? Willthe decision in the instant case necessitate federal legislation? Theproblems now created can only be solved through sober recogni-tion of a new pattern developed by the court in this liminal area ofattorney-client relationships-a pattern based on an extension ofconstitutional guarantees modifying the previously accepted appli-cation of the Canons of Professional Ethics. As the law must meetthe needs of the people, so must the molds be reshaped accordinglyto reestablish a standard of conduct comportable to the legal pro-fession and the well-being of society.Frank Cuomo, Jr.Criminal Law-Admissibility in Criminal Courts of EvidenceDerived from Inadmissible Juvenile ConfessionsD was one of two juveniles convicted of robbery by a jury in afederal district court following waiver of juvenile court jurisdiction.On appeal, D objected to testimony of a third juvenile who con-fessed participation in the robbery. D claimed this witness's identitywas discovered as a result of a confession obtained from one of theDs while in the custody of the juvenile court. Held, convictionaffirmed. The rule forbidding the use of the confessions or admis-sions obtained from the accused while detained under juvenilecourt jurisdiction is intended to preserve the fundamental fairnessto the juvenile, not to deter improper police conduct. The rela-tionship between the inadmissible confession and the testimonyof the witness was so slight that there was no reason for excludingit. Edwards v. United States, 330 F.2d 849 (D.C. Cir. 1964).196414West Virginia Law Review, Vol. 67, Iss. 1 [1964], Art. 6https://researchrepository.wvu.edu/wvlr/vol67/iss1/6

Attorney and Client--Union Programs To Obtain Legal Counsel

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Attorney and Client--Union Programs To Obtain Legal Counsel

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