United Transportation Union v. Michigan Bar, 401 U.S. 576 (1971)

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Filed: 1971-04-05Precedential Status: PrecedentialCitations: 401 U.S. 576, 91 S. Ct. 1076, 28 L. Ed. 2d 339, 1971 U.S. LEXIS 131Docket: 434Supreme Court Database id: 1970-070

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401 U.S. 576
91 S.Ct. 1076
28 L.Ed.2d 339

UNITED TRANSPORTATION UNION, Petitioner,
v.
The STATE BAR OF MICHIGAN.
No. 434.
Argued Jan. 20, 1971.
Decided April 5, 1971.

John J. Naughton, Chicago, Ill., for petitioner.
A. D. Ruegsegger, Detroit, Mich., for respondent.
Mr. Justice BLACK delivered the opinion of the Court.

1

The Michigan State Bar brought this action in January 1959 to enjoin the
members of the Brotherhood of Railroad Trainmen1 from engaging in activities
undertaken for the stated purpose of assisting their fellow workers, their
widows and families, to protect themselves from excessive fees at the hands of
incompetent attorneys in suits for damages under the Federal Employers'
Liability Act.2 The complaint charged, as factors relevant to the cause of action,
that the Union recommended selected attorneys to its members and their
families, that it secured a commitment from those attorneys that the maximum
fee charged would not exceed 25% of the recovery, and that it recommended
Chicago lawyers to represent Michigan claimants. The State Bar's complaint
appears to be a plea for court protection of unlimited legal fees. The Union's
answers admitted that it had engaged in the practice of protecting members
against large fees and incompetent counsel; that since 1930 it had
recommended, with respect to FELA claims, that injured member employees,
and their families, consult attorneys designated by the Union as 'Legal Counsel';
that prior to March 1959, it had informed the injured members and their
families that the legal counsel would not charge in excess of 25% of any
recovery; and that Union representatives were reimbursed for transporting
injured employees, or their families, to the legal counsel offices.

2

The only evidence introduced in this case was the testimony of one employee of
the Association of American Railroads in 1961 that from 1953 through 1960 a
large number of Michigan FELA claimants were represented by the Union's
designated Chicago legal counsel. Based on this evidence and the Union's
admissions set out above, the state trial court in 1962 issued an order enjoining
the Union's activities on the ground that they violated the state statute making it
a misdemeanor to 'solicit' damage suits against railroads.3 The Union appealed
to the Michigan Supreme Court, but before the case was argued on appeal, this
Court handed down its decision in Brotherhood of Railroad Trainmen v.
Virginia ex rel. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89
(1964), involving a similar injunction secured by the Virginia State Bar against
the Union. We held in that case that the First Amendment guarantees of free
speech, petition, and assembly give railroad workers the right to cooperate in
helping and advising one another in asserting their rights under the FELA.
While not deciding every question that possibly could be raised, our opinion
left no doubt that workers have a right under the First Amendment to act
collectively to secure good, honest lawyers to assert their claims against
railroads.

3

Acknowledging our decision in Trainmen, the Michigan Supreme Court
remanded the instant case to the state trial court with permission for
amendment of the complaint 'to seek, if it be so advised, relief not inconsistent
with the Supreme Court's said opinion.' 374 Mich. 152, 155, 132 N.W.2d 78,
79. After remand, the State Bar made a motion for further proceedings. That
motion was heard on February 5, 1965, at which time the Bar declined to
amend its complaint. For reasons not explained in the record, the case lingered
in the trial court until May 24, 1968. On that date, after a motion for judgment
by the State Bar and arguments on the motion, the trial court adopted verbatim
the injuction entered in the Virginia state courts after our remand in Trainmen.

4

In affirming the trial court decree, the material part of which is set out below,4
the Michigan Supreme Court gave our holding in Trainmen the narrowest
possible reading,5 focusing only on the specific literal language of the
injunctive provisions challenged in that case rather than the broad range of
union activities held to be protected by the First Amendment. Similarly, the
Michigan court erroneously restricted our holding in United Mine Workers of
America, Dist. 12 v. Illinois State Bar Assn., 389 U.S. 217, 88 S.Ct. 353, 19
L.Ed.2d 426 (1967), to 'the operative portion' of the Illinois decree prohibiting
any financial connection between the attorney and the Union. The Michigan
Supreme Court failed to follow our decisions in Trainmen, United Mine
Workers, and NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405
(1963), upholding the First Amendment principle that groups can unite to assert
their legal rights as effectively and economically as practicable. When applied,
as it must be, to the Union's activities reflected in the record of this case, the
First Amendment forbids the restraints imposed by the injunction here under
review for the following among other reasons.

5

First. The decree approved by the Michigan Supreme Court enjoins the Union
from 'giving or furnishing legal advice to its members or their families.' Given
its broadest meaning, this provision would bar the Union's members, officers,
agents, or attorneys from giving any kind of advice or counsel to an injured
worker or his family concerning his FELA claim. In Trainmen we upheld the
commonsense proposition that such activity is protected by the First
Amendment. Moreover, the plain meaning of this particular injunctive
provision would emphatically deny the right of the Union to employ counsel to
represent its members, a right explicitly upheld in United Mine Workers6 and
NAACP v. Button.

6

We cannot accept the restricted interpretation of this provision urged by the
State Bar, and accepted by our Brother HARLAN, that it only prohibits the
Union or its members themselves from 'practicing law.' The record is devoid of
any evidence or allegation of such conduct on the part of the Union or its
members. A decree must relate specifically and exclusively to the pleadings
and proof. If not so related, the provision, because of its vagueness, will
jeopardize the exercise of protected freedoms. This injunction, like a criminal
statute, prohibits conduct under fear of punishment. Therefore, we look at the
injunction as we look at a statute, and if upon its face it abridges rights
guaranteed by the First Amendment, it should be struck down. Our statement in
NAACP v. Button concerning the statute there in question is equally applicable
to the injunction now before us: '(W)e cannot assume that, in its subsequent
enforcement, ambiguities will be resolved in favor of adequate protection of
First Amendment rights.' 371 U.S., at 438, 83 S.Ct., at 340.

7

Second. The decree also enjoins the Union from furnishing to any attorney the
names of injured members or information relating to their injuries. The
investigation of accidents by Union staff for purposes of gathering evidence to
assist the injured worker or his family in asserting FELA claims was part of the
Union practice upheld in Trainmen. 377 U.S., at 4 n. 8, 84 S.Ct., at 1115. It
would seem at least a little strange now to hold that the Union cannot
communicate that information to the injured member's attorney.7

8

Third. A provision of the decree enjoins the members of the Union from
'accepting or receiving compensation of any kind, directly or indirectly, for the
solicitation of legal employment for any lawyer, whether by way of salary,
commission or otherwise.' The Union conceded that prior to 1959, Union
representatives were reimbursed for their actual time spent and out-of-pocket
expenses incurred in bringing injured members or their families to the offices of
the legal counsel. Since the members of a union have a First Amendment right
to help and advise each other in securing effective legal representation, there
can be no doubt that transportation of injured members to an attorney's office is
within the scope of that protected activity. To the extent that the injunction
prohibits this practice, it is invalid under Trainmen, United Mine Workers, and
NAACP v. Button.

9

Fourth. Our Borthers HARLAN and WHITE apparently accept the State Bar
contention that the provision prohibiting compensation to Union representatives
for solicitation refers to compensation paid by the attorney rather than the
Union. And so interpreted, it supplements the two provisions which prohibit
the Union from sharing in legal fees received by the recommended counsel.
There is no basis for this restraint. Such activity is not even suggested in the
complaint. There is not a line of evidence concerning such practice in the
record in this case. If there is any such suggestion, it is in records in other cases
involving other parties in other courts, records upon which we believe our
Brother HARLAN erroneously seeks to rely. In fact, the explanation for the
appearance of the provisions in this decree appears to be the Michigan court's
verbatim adoption of a Virginia injunction issued in a different case on different
pleadings relating to different facts. Decrees between litigants should not rest
on any such unsupportable basis as this.

10

Our Brother HARLAN appears to concede that the State Bar has neither alleged
nor proved that the Union has engaged in the past, is presently engaging, or
plans to engage, in the sharing of legal fees. Nonetheless, he suggests that the
injunction against such conduct is justified in order to remove any 'temptation'
for the Union to participate in such activities. We cannot accept this novel
concept of equity jurisdiction that would open the courts to claims for
injunctions against 'temptation,' and would deem potential 'temptation' to be a
sufficient basis for the issuance of an injunction. Indeed, it would appear that
jurisdiction over 'temptation' has heretofore been reserved to the churches.

11

An injunction can issue only after the plaintiff has established that the conduct
sought to be enjoined is illegal and that the defendant, if not enjoined, will
engage in such conduct. In Hitchman Coal & Coke Co. v. Mitchell, 245 U.S.
229, 262, 38 S.Ct. 65, 76, 62 L.Ed. 260 (1917), this Court struck the portions of
a decree enjoining a union from picketing and physical violence because there
was no evidence that either of these forms of interference was threatened.8
Likewise in the present case, with respect to the prohibition against sharing
legal fees, the State Bar simply has made no showing that such conduct was
threatened. Indeed, it has made no showing at all. Therefore, that provision of
the decree, to use an often quoted slogan, would appear to be not only
unjustified, but also 'arbitrary and capricious.'

12

Fifth. Finally, the challenged decree bars the Union from controlling, directly
or indirectly, the fees charged by any lawyer. The complaint alleged that the
Union sought to protect its members from excessive legal fees by securing an
agreement from the counsel it recommends that the fee will not exceed 25% of
the recovery, and that the percentage will include all expenses incidental to
investigation and litigation. The Union in its answer admitted that prior to 1959
it secured such agreements for the protection of its members.

13

United Mine Workers upheld the right of workers to act collectively to obtain
affordable and effective legal representation. One of the abuses sought to be
remedied by the Mine Workers' plan was the situation pursuant to which
members 'were required to pay forty or fifty per cent of the amounts recovered
in damage suits, for attorney fees.' 389 U.S., at 219, 88 S.Ct., at 354. The Mine
Workers dealt with the problem by employing an attorney on a salary basis,
thereby providing free legal representation for its members in asserting their
claims before the state workmen's compensation board. The Union in the
instant case sought to protect its members against the same abuse by limiting
the fee charged by recommended attorneys. It is hard to believe that a court of
justice would deny a cooperative union of workers the right to protect its
injured members, and their widows and children, from the injustice of excessive
fees at the hands of inadequate counsel. Indeed, the Michigan court was
foreclosed from so doing by our decision in United Mine Workers.9

14

In the context of this case we deal with a cooperative union of workers seeking
to assist its members in effectively asserting claims under the FELA. But the
principle here involved cannot be limited to the facts of this case. At issue is
the basic right to group legal action, a right first asserted in this Court by an
association of Negroes seeking the protection of freedoms guaranteed by the
Constitution. The common threat running through our decisions in NAACP v.
Button, Trainmen, and United Mine Workers is that collective activity
undertaken to obtain meaningful access to the courts is a fundamental right
within the protection of the First Amendment. However, that right would be a
hollow promise if courts could deny associations of workers or others the
means of enabling their members to meet the costs of legal representation. That
was the holding in United Mine Workers, Trainmen, and NAACP v. Button.
The injunction in the present case cannot stand in the face of these prior
decisions.

15

Reversed.

16

Mr. Justice STEWART took no part in the decision of this case.

17

Mr. Justice HARLAN, concurring in part and dissenting in part.

18

The Court's conclusions with respect to the issues presented by the case at bar
are, in my view, flawed by the absence of any examination of the relationship
between this case and the substantially contemporaneous proceedings in Illinois
and Virginia against the same union with respect to the same charges of
unprofessional conduct in the Brotherhood's 'Legal Aid Department.'

19

* The history of the establishment of the Legal Aid Department and the early
attacks upon it by state and local bar associations, with the assistance and
encouragement of the Association of American Railroads, has been fully
recounted elsewhere. See Bodle, Group Legal Services: The Case for BRT, 12
U.C.L.A.L.Rev. 306, 307 317 (1965); Note, 50 Cornell L.Q. 344 (1965). The
most significant point in this history, for present purposes, came in the late
1950's. With disciplinary proceedings pending against its Regional Counsel in
Chicago,1 the Brotherhood counterattacked by moving in the Supreme Court of
Illinois for a declaration that the Brotherhood's plan was both legal and
compatible with the minimum standards of professional conduct. After hearings
before a special commissioner, the Illinois court found that the basic facts with
respect to the operation of the Legal Aid Department were not seriously
disputed:

20

'As it presently operates, the legal aid department of the Brotherhood maintains
a central office in Cleveland, Ohio, at the national headquarters of the
Brotherhood. In that office it has a staff consisting of a chief clerk, a research
analyst, three stenographers and a file clerk. It also has a number of regional
investigators. The Cleveland office serves as a clearing house which receives
reports from all Brotherhood Lodges of instances in which members have been
injured or killed in railroad accidents. It notifies the appropriate regional
investigator and regional counsel of all accidents.

21

'By agreement with the Brotherhood the attorneys who are designated as
regional counsel charge a fee of twenty-five per cent of the amount recovered
in each case, whether recovery is by settlement or by judgment. Regional
counsel have also agreed to and do pay all court costs, investigation costs, costs
of doctors' examinations, expert witness fees, transcript costs and the cost of
printing briefs on appeal. They also pay the total cost of operating the legal aid
department of the union (including the department's ratable share of the
expenses of the Brotherhood's conventions). All expenses of the legal aid
department are apportioned among the sixteen regional counsel in the ratio that
their respective gross fees bear to the total gross recoveries throughout the
country. * * *

22

'The Brotherhood constitution requires that each local lodge appoint someone
whose duty it is to fill out an accident report whenever a member is injured, and
also to make contact with the injured man, or the relatives of a man who is
killed, and make it known that legal advice will be given free of charge by the
regional counsel. He also makes known the availability of regional counsel to
handle the claim and any ensuing litigation for a total charge of twenty-five per
cent of the amount recovered by settlement or by litigation. The twenty-five per
cent includes all expenses of investigation and litigation.

23

'The lodge member who investigates the occurrence and makes contact with the
injured man recommends and urges that regional counsel be consulted and
employed. These men carry blank copies of contracts employing the regional
counsel's firm as attorneys. The regional investigators employed by the legal
aid department also carry these contracts. If a signed contract is not obtained by
an investigator in the field, an investigator often brings the interested parties to
the office of the regional counsel in Chicago. The injured man may be
accompanied by his wife, and if the interested party is a widow, the wife of the
investigator also makes the trip. The expenses of these trips are paid
immediately by regional counsel. The lodge member who investigates and
urges the employment of regional counsel is also compensated by regional
counsel at his regular hourly wage rate for time spent in investigating the case
and in making the trip to Chicago. These amounts are paid whether or not the
regional counsel is retained, and regardless of the ultimate outcome. In addition
(the regional counsel in Chicago) testified, 'There are many times when one of
the boys will bring in a case, and taking care of the investigation, etc., they are
given a gratuity of $100 or $150." In re Brotherhood of Railroad Trainmen, 13
Ill.2d 391, 392—395, 150 N.E.2d 163, 165—166 (1958).

24

On the basis of the facts thus found, the court laid down the following
guidelines to indicate to the Brotherhood what it could and could not do it
connection with personal injury and wrongful death claims with respect to its
members:

25

'We are of the opinion that the Brotherhood may properly maintain a staff to
investigate injuries to its members. It may so conduct those investigations that
their results are of maximum value to its members in prosecuting their
individual claims, and it may make the reports of those investigations available
to the injured man or his survivors. Such investigations can be financed directly
and without undue burden by the 218,000 members of the Brotherhood.

26

'The Brotherhood may also make known to its members generally, and to
injured members and their survivors in particular, first, the advisability of
obtaining legal advice before making a settlement and second, the names of
attorneys who, it its opinion, have the capacity to handle such claims
successfully. Its employees, however, may not carry contracts for the
employment of any lawyer, or photostats of settlement checks. No financial
connection of any kind between the Brotherhood and any lawyer is permissible.
No lawyer can properly pay any amount whatsoever to the Brotherhood or any
of its departments, officers or members as compensation, reimbursement of
expenses or gratuity in connection with the procurement of a case. Nor can the
Brotherhood fix the fees to be charged for services to its members. The
relationship of the attorney to his client must remain an individual and a
personal one.

27

'The course thus outlined, if adopted, will make it possible for the Brotherhood
to achieve its legitimate objectives without tearing down the standards of the
legal profession.' Id., at 397—398, 150 N.E.2d, at 167—168.

28

The court gave the Brotherhood over a year, until July 1, 1959, to bring itself
into compliance with these standards. Id., at 399, 150 N.E.2d, at 168.

29

The decree thus rendered appeared to satisfy both the Brotherhood and the Bar.
See Note, 50 Cornell L.Q. 344, 348 and n. 32 (1965); Bodle, Group Legal
Services: The Case for BRT, 12 U.C.L.A.L.Rev. 306, 317 (1965). By letter
dated March 16, 1959, the president of the Brotherhood directed all legal
counsel 'to live up to said opinion in its entirety' on pain of being removed from
office and reported to the local bar association. The letter also announced that
'(t) he Brotherhood will finance its Legal Aid Department, and will investigate
accidents so that it will be acquainted with the cause of said accidents, and by
so doing will be able to remedy any violation of the Federal Employers'
Liability Act and the Safety Appliance Act. The result of such investigation
shall be made available only to the injured person.' App. 16—17. The opinion
of the Illinois court and the letter of the BRT president directing compliance
therewith became the basis for consent judgments in Nebraska,2 Missouri,3 and
several other States.4

30

The Virginia Bar, however, was not content with the anti-solicitation measures
ordered by the Illinois court, 5 and it pressed for and obtained a more sweeping
decree. That decree, as originally entered, restrained the Brotherhood.

31

'(1) from giving or furnishing legal advise to its members or their families; (2)
from holding out lawyers selected by it as the only approved lawyers to aid the
members or their families; (3) from informing any lawyer that an accident has
occurred and furnishing the name and address of an injured or deceased
member for the purpose of obtaining legal employment for such lawyer; (4) or
in any other manner soliciting or encouraging such legal employment of the
selected lawyers; (5) from stating or suggesting that such selected lawyers will
defray expenses and make advances to clients pending settlement of claims; (6)
from controlling, directly or indirectly, fees charged or to be charged by any
lawyer; (7) from making compensation for the solicitation of legal employment
for any lawyer, whether by way of salary, commission or otherwise; (8) from in
any manner sharing in the legal fees of any lawyer, or countenancing the
splitting of such fees with any layman or lay agency; (9) and from doing any act
or combination of acts, and from formulating and putting into practice any plan,
pattern or design, the result of which is to channel legal employment to any
particular lawyer or group of lawyers; (10) and, in general, from violating the
laws governing the practice of law in the Commonwealth of Virginia.'
Brotherhood of Railroad Trainmen v. Commonwealth ex rel. Virginia State
Bar, 207 Va. 182, 184 n. 1, 149 S.E.2d 265, 266—267, n. 1 (1966) (numbers
have been inserted for convenient reference).

32

The Brotherhood sought and obtained review by this Court, limiting its attack
to the provisions numbered (2), (4), and (9) above. See Brotherhood of
Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 4—5, 84
S.Ct. 1113, 1115—1116, 12 L.Ed.2d 89 (1964). This was apparently the result
of a tactical decision, for it enabled the Brotherhood to argue that it had
acquiesced in the restraints imposed on its activities by the Illinois Supreme
Court, which that court had held were adequate to protect the ethics of the legal
profession and the public interest.6 The Brotherhood therefore could take the
position that it contested the Virginia decree only because 'the (Virginia) Bar
sought a more restrictive injunction than the Illinois opinion suggested.' Reply
Brief 29, Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State
Bar, No. 34, O.T. 1963.

33

This Court accepted the Brotherhood's contentions and reversed. On remand,
the Virginia courts deleted the provisions struck down by this Court, replaced
provision (10) with a prohibition on 'sharing in any recovery for personal injury
or death by gift, assignment or otherwise,' altered the wording of the remaining
provisions in minor respects, and upheld the modified decree as consistent with
this Court's mandate. 207 Va. 182, 149 S.Ed.2d 265 (1966). The Brotherhood
did not seek review of this decision, and it became final in due course.
II

34

Given this background, with which counsel below and the trial judge were
generally familiar, the proceedings now under review appear in a substantially
different posture. The State Bar's complaint charged unlawful solicitation of
business. The Brotherhood's answer, after admitting the charges in some
respects and denying them in others, set up the Illinois Supreme Court opinion
as an affirmative defense, noting that the Michigan State Bar had been aware of
that proceeding and had assisted in it, although it was not formally a party. The
answer observed that the Illinois court had declared certain features of the
Brotherhood's activities lawful and other features unlawful and directed the
discontinuance of the latter. The answer then averred that after the filing of the
Michigan complaint the Brotherhood had brought itself into compliance with
the Illinois opinion. The answer quoted the above-mentioned letter from the
Brotherhood's president as proof. On this basis, the Brotherhood contended that
the conduct complained of either was permissible or had terminated, so that the
bill should be dismissed for want of equity and for mootness. App. 15—17.

35

In its reply the State Bar specifically relied on the Brotherhood's admissions in
the Illinois proceedings and the findings of the Illinois court as working an
estoppel of the defendants with respect to at least some of the matters there in
issue. App. 20—27. 7 However, the reply leaves unclear just what the Bar
considered to be involved in the Michigan lawsuit. It described the Michigan
Bar's cause of action as both broader and narrower than the Illinois lawsuit.
App. 23—24. The next pleading filed, a 'Statement of Claim,' did little to
clarify matters. It referred only to the Brotherhood's scheme of solicitation of
legal business, but included allegations that as part of the scheme regional
counsel made payments to the Brotherhood and to regional investigators and
also contributed to the financial support of clients during the pendency of
litigation. App. 29.

36

The trial judge apparently sought to clear up the confusion as to just what was
in issue by including in the pretrial summary a provision that '(i)n the event
there is not a consent decree, defendants have been requested to advise what
issue in Michigan is different than in the other states where consent decrees
have entered.' App. 30. There is nothing in the record to indicate that the
defendants responded to this request in a way designed to limit the issues to
solicitation.

37

After the initial hearing in this case the trial judge entered a decree that inter
alia prohibited the Brotherhood from '(e)ngaging in any activity, conduct or
endeavor condemned by the Supreme Court of Illinois in In re Brotherhood of
Railroad Trainmen.' App. 117. In this connection he observed that 'although
certain specific activities and conduct as contained in the Illinois decision were
not specifically pleaded in the instant suit, nevertheless, by the defendants'
answer, they have been indirectly injected into this litigation and should be
covered by the Court's order.' App. 112. Inasmuch as the activities referred to,
see supra, at 587—589, were directly related to the solicitation charged in the
State Bar's complaint, I consider this decision by the judge to be entirely
justifiable.

38

While it is unfortunate that the record is as stale as it is, there is ample evidence
to indicate that the Brotherhood's conduct, as least as of the time the bill of
complaint was filed, was of such a character as to call for the decree before us.
The Brotherhood, despite its repeated allegations that the objectionable features
of this conduct ceased in April 1959, failed to introduce any proof to that effect
during the evidentiary hearing in 1961. In the 1965 and 1968 proceedings on
remand from the Michigan Supreme Court, the Brotherhood did not request a
reopening of the record, or even assert that there had been any significant
change in factual circumstances since the original proceedings. Moreover,
Michigan law provides for modification of a continuing injunction upon a
proper showing of changed circumstances. See First Protestant Reformed
Church of Grand Rapids v. DeWolf, 358 Mich. 489, 495, 100 N.W.2d 254, 257
(1960) (dictum), citing United States v. Swift & Co., 286 U.S. 106, 114, 52
S.Ct. 460, 462, 76 L.Ed. 999 (1932). With matters in this posture, I am content
to pass on the validity of the decree despite the state of the record.
III

39

I agree that, in light of this Court's recent decisions, one portion of the
Michigan decree—that prohibiting the union from controlling the fees charged
by attorneys—cannot stand. In United Mine Workers of America, Dist. 12 v.
Illinois Bar Assn., 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d 426 (1967), the
Court held that as a matter of federal constitutional law a labor union is entitled
to engage an attorney to represent its members in matters of collective interest,
free of direct financial charge to them. While I believed then and still believe
that this was an unsound piece of constitutional adjudication, I am unable to
distinguish the facts of Mine Workers from those in the case at bar, where a
union agreed with attorneys as to the maximum fee to be charged its members
in matters of collective interest. Despite the Brotherhood's prior acquiescence in
the decrees in Virginia and other States, I find the unforeseeable change in the
law wrought by the Mine Workers decision sufficient to justify relieving it from
the consequences of taking that position. See Restatement of Judgments § 70
(1942); 1B J Moore, Federal Practice 0.448 (1965). I therefore concur in the
Court's vacating this portion of the Michigan decree. In all other respects I think
the decree is consistent with our past decisions and otherwise valid.

40

The first portion of that decree prohibits the Brotherhood from 'giving or
furnishing legal advice to its members or their families.' I do not understand that
the Court's 'commonsense' approach to the First Amendment extends to the
point that laymen are constitutionally entitled to give legal advice to other
laymen. I think it plain that the provision was intended to prohibit only such
conduct. It is manifestly based on the Virginia decree, where the corresponding
provision was supported by the chancellor's finding that '(i)n furtherance of the
plan the defendant Brotherhood has advised, and continues to advise, its
members and the families of deceased members with respect to the legal
aspects of their claims.' 207 Va., at 183 n. 1, 149 S.E.2d, at 266 n. 1. The
provision is also related to the prohibition in the 1962 Michigan decree against
'(t)elling any person or his representatives that said person has a cause of
action, the amount he is entitled to recover, where suit should be filed, or doing
any other act or thing which constitutes the practice of law within the State of
Michigan.' App. 117. I therefore can only consider fanciful the Court's
suggestion that the 'plain meaning' of this prohibition 'would emphatically deny
the right of the Union to employ counsel to represent its members.' Ante, at
581. In any event, if there is any ambiguity in the decree the appropriate course
is to clarify it, not to strike it down.

41

The second provision of the decree, prohibiting the Brotherhood from
furnishing attorneys with information about accidents and the names and
addresses of injured workers, orders it to refrain from conduct that it averred
but did not prove had been terminated. Nothing in our prior decisions approves
the solicitation of business by lawyers except insofar as the solicitation may be
correlative to the rights of the clients. See Brotherhood of Railroad Trainmen v.
Virginia ex rel. Virginia State Bar, 377 U.S., at 8, 84 S.Ct., at 1117—1118.
There is no reason in terms of First Amendment interests why the Brotherhood
should not be obliged to give the results of its investigations to the injured
person to take to whatever lawyer he chooses rather than for the Brotherhood to
give it to the lawyer it prefers. The provision is plainly appropriate as a means
of ensuring that the injured workman has a truly free choice. In effect this
provision of the decree is designed to fend against 'ambulance chasing,' an
activity that I can hardly suppose the Court thinks is protected by the First
Amendment.

42

Another provision of the decree prohibits the Brotherhood and its members
from 'stating or suggesting that a recommended lawyer will defray expenses of
any kind or make advances for any purpose to such injured persons or their
families pending settlement of their claim.' I think it a close question whether
the conduct thus proscribed is protected under this Court's opinion in
Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, supra.
As petitioner admits, while it is not generally improper for an attorney to make
advances to clients, it is considered improper for him to use the fact that he
makes them as a drawing card in an effort to secure professional employment.
At the same time, there is no contention made that the representation thus
proscribed is inaccurate, and misapprehension on this score may well be the
determinative factor in an injured man's decision not to seek legal advice in
connection with his claim. On balance, I conclude that the equities do not call
for relieving petitioner of its considered decision to acquiesce in this portion of
the Virginia decree and the corresponding portions of consent decrees entered
in other States.

43

The remaining provisions of the decree prohibit the Brotherhood from sharing
in legal fees or recoveries, and prohibit the members from accepting
compensation for solicitation of business for a lawyer. These provisions are
entirely appropriate to remove any temptation for the representatives of the
Brotherhood to overbear the injured man's choice of legal representation. They
prohibit conduct which has long been considered unethical, and which in no
significant way advances the interests that the Court's prior decisions in this
field sought to protect. I see no basis whatever for striking down these
provisions of the decree.8

44

For these reasons I would sustain the judgment of the Michigan Supreme Court,
with the exception already noted for the prohibition on controlling the fees
charged by any lawyer. However, it is appropriate for me to make a few
general remarks in closing. I share my Brothers' concern with the problems of
providing meaningful access to competent legal advice for persons in the
middle and lower economic strata of our society. This is a matter of public
concern deserving our best efforts at resolution, a task that the organized bar
may be thought to have been too slow in recognizing. Nor do I condone, any
more than my Brethren, the nefarious practices that called forth the
Brotherhood's plan before us today.

45

But the issue presented for decision is not the desirability of group legal
services, or the ways in which the traditional concepts of professional ethics
should be modified to take account of the changes in social structure and social
needs since the 19th century. The issue, rather, is the scope left by the Federal
Constitution for state action in the regulation of the practice of law. Despite the
First Amendment implications of denial of access to the courts in other
situations, see NAACP v. Button, 371 U.S. 415, 452—455, 83 S.Ct. 328, 347—
349, 9 L.Ed.2d 405 (1963) (dissenting opinion), all that is involved here is a
combination of purchasers of services seeking to increase their market power.
The relationship to First Amendment interests seems to me remote at best. Cf.
Associated Press v. United States, 326 U.S. 1, 19—20, 65 S.Ct. 1416, 1424—
1425, 89 L.Ed. 2013 (1945). Recognizing that a majority of my Brethren felt
otherwise in Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia
State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964), and United Mine
Workers of America, Dist. 12 v. Illinois Bar Assn., 389 U.S. 217, 88 S.Ct. 353,
19 L.Ed.2d 426 (1967), I accept their conclusion. I would not, however, extend
those cases further than is required by their logic. Accordingly, with the one
exception noted, I would affirm the judgment below.

46

Mr. Justice WHITE, with whom Mr. Justice BLACKMUN joins, concurring in
part and dissenting in part.

47

The first provision in the decree prohibiting the union from giving or furnishing
legal advice to its members or their families is overbroad in light of United
Mine Workers v. Illinois Bar Assn., 389 U.S. 217, 88 S.Ct. 353, 19 L.Ed.2d
426 (1967), and should be narrowed to prohibit only legal advice by
nonlawyers. Also, I agree with the Court that the portion of the decree
forbidding the setting of fees by unionlawyer agreement cannot stand.
Otherwise, however, I do not read the decree as being inconsistent with our
prior cases and I would not now extend them to set aside this decree in its
entirety.

1

2
3

On January 1, 1969, after the decree was entered in the court below, the
Brotherhood of Railroad Trainmen merged into a newly created union, the
United Transportation Union. The successor union is the petitioner in this
case.
35 Stat. 65, as amended, 45 U.S.C. §§ 51—60.
Section 750.410, Mich.Comp.Laws (1948), in relevant part provides:
'Any person * * * or organization of any kind, either incorporated or
unincorporated * * * who shall directly or indirectly * * * solicit any
person injured as the result of an accident * * * for the purpose of
representing such person in making claim for damages * * * shall be guilty
of a misdemeanor. * * *'

4

The decree entered by the Michigan trial court permanently restrained and
enjoined the Union:
'from giving or furnishing legal advice to its members or their families;
from informing an y lawyer or lawyers that n accident has been suffered
by a member or non-member of the said Brotherhood and furnishing the
name and address of such injured or deceased person for the purpose of
obtaining legal employment for any lawyer; from stating or suggesting that
a recommended lawyer will defray expenses of any kind or make
advances for any purpose to such injured persons or their families pending
settlement of their claim; from controlling, directly or indirectly, the fees
charged or to be charged by any lawyer; from accepting or receiving
compensation of any kind, directly or indirectly, for the solicitation of
legal employment for any lawyer, whether by way of salary, commission
or otherwise; from sharing in any manner in the legal fees of any lawyer or
countenancing the splitting of or sharing in such fees with any layman or
lay agency; and from sharing in any recovery for personal injury or death
by gift, assignment or otherwise.'

5
6

383 Mich. 201, 174 N.W.2d 811.
The decree overturned in United Mine Workers also enjoined the union
from: 'Giving legal counsel and advice.' 389 U.S., at 218 n. 1, 88 S.Ct., at
354. It was conceded in that case that the provision was directed at the
Union's employment of an attorney.

7

8

9

1
2
3
4
5

Our Brother HARLAN suggests that the injured member should be free to
direct the collected information to whatever lawyer he chooses, rather than
for the Union to give it to the Union's recommended legal counsel.
However, the injunction prohibits the Union from furnishing the
information to 'any lawyer,' apparently including both recommended and
nonrecommended counsel alike. The injunction would prohibit the injured
member's attorney, regardless of whether or not he was recommended by
the Union, from communicating with the Union's representative who
investigated the accident, is familiar with the facts, and, other than the
injured member himself, is probably the person most qualified to answer
the attorney's questions and assist in preparation of the claim. To satisfy
the Michigan court's notion that direct communication between the Union
and the member's attorney is somehow unlawful, it seems our Brother
HARLAN would restrict the Union's efforts, which we expressly approved
in Trainmen, of assisting the injured member in preparing his case for trial,
to a written accident report filed with the injured member.
Mr. Justice Brandeis dissented on the ground that this principle should
have been applied to strike the other provisions of the injunction as well.
245 U.S., at 263, 38 S.Ct., at 76 (Brandeis, J., dissenting).
The injunction also bars the Union 'from stating or suggesting that a
recommended lawyer will defray expenses of any kind or make advances
for any purpose to such injured persons or their families pending
settlement of their claim.' The only allegation in the complaint possibly
relating to this injunctive provision is that the Union representatives
informed the injured members that the 25% the included all expenses.
This provision of the injunction, therefore, is invalid for the same reasons
that the provision limiting fees is invalid.
The Chicago Regional Counsel had jurisdiction over the lower peninsula
of Michigan, where this lawsuit was brought. App. 14.
State ex rel. Beck v. Lush, 170 Neb. 376, 103 N.W.2d 136 (1960).
Hulse v. Brotherhood of Railroad Trainmen, 340 S.W.2d 404 (Mo.1960).
Initially it appeared that a consent decree might be entered in the Michigan
proceedings, but this possibility never eventuated. App. 30—31.
See the testimony of petitioner's president during pretrial proceedings in
the Virginia case that '(i)f we thought for a moment' that a consent decree
along the lines of the Illinois opinion would be acceptable 'we would make
it effective tomorrow.' App. 91, Brotherhood of Railroad Trainmen v.
Virginia ex rel. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d
89 (1964).

6

The Court acknowledged this limitation on the Brotherhood's contentions:
'Certain other provisions of the decree enjoin the Brotherhood from
sharing counsel fees with lawyers whom it recommended and from
countenancing the sharing of fees by its regional investigators. The
Brotherhood denies that it has engaged in such practices since 1959, in
compliance with a decree of the Supreme Court of Illinois. See In re
Brotherhood of Railroad Trainmen, 13 Ill.2d 391, 150 N.E.2d 163. Since
the Brotherhood is not objecting to the other provisions of the decree
except insofar as they might later be construed as barring the Brotherhood
from helping injured workers or their families by recommending that they
not settle without a lawyer and by recommending certain lawyers selected
by the Brotherhood, it is only to that extent that we pass upon the validity
of the other provisions.' 377 U.S., at 5 n. 9, 84 S.Ct., at 1116.

7

8

The reply also referred in passing to actions in courts of other States where
the Brotherhood has been condemned for engaging in 'the same or similar
practices as those at issue in this cause.' App. 24.
The Brotherhood explicitly admitted in its answer that its members had in
the past received compensation from regional counsel for services in
furnishing clients, App. 17, and the opinion of the Illinois Supreme Court,
on which the Brotherhood relied, detailed the manner in which regional
counsel were required to support the Brotherhood's Legal Aid Department.
See supra, at 587. This scheme was the end product of an evolution from
more direct forms of fee splitting, a process described in Hulse v.
Brotherhood of Railroad Trainmen, 340 S.W.2d 404, 408—409
(Mo.1960). The court below, having found the evil in a matured form, was
entitled to proscribe as well the straight-forward manifestation in which it
had begun. Moreover, it is well settled that a court of equity, like an
administrative agency, 'cannot be required to confine its road block to the
narrow lane the transgressor has traveled; it must be allowed effectively to
close all roads to the prohibited goal, so that its order may not be bypassed with impunity.' FTC v. Ruberoid Co., 343 U.S. 470, 473, 72 S.Ct.
800, 803, 96 L.Ed. 1081 (1952) (footnote omitted). See, e.g., Local 167 of
International Brotherhood of Teamsters, Chauffeurs, Stablemen and
Helpers of America v. United States, 291 U.S. 293, 54 S.Ct. 396, 78 L.Ed.
804 (1934); Ethyl Gasoline Corp v. United States, 309 U.S. 436, 60 S.Ct.
618, 84 L.Ed. 852 (1940); United States v. National Lead Co., 332 U.S.
319, 67 S.Ct. 1634, 91 L.Ed. 2077 (1947).

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