An injunction issued by a state court, prohibiting, as the
unlawful solicitation of litigation and the unauthorized practice
of law, a labor union from advising injured members or their
dependents to obtain legal assistance before settling claims and
recommending specific lawyers to handle such claims, infringes
rights guaranteed by the First and Fourteenth Amendments. NAACP
v. Button, 371 U. S. 415
Judgment and decree vacated, and case remanded.
MR. JUSTICE BLACK delivered the opinion of the Court.
The Virginia State Bar brought this suit in the Chancery Court
of the City of Richmond, Virginia,
Page 377 U. S. 2
against the Brotherhood of Railroad Trainmen, an investigator
employed by the Brotherhood, and an attorney designated its
"Regional Counsel," to enjoin them from carrying on activities
which, the Bar charged, constituted the solicitation of legal
business and the unauthorized practice of law in Virginia.
] It was conceded
that, in order to assist the prosecution of claims by injured
railroad workers or by the families of workers killed on the job,
the Brotherhood maintains in Virginia and throughout the country a
Department of Legal Counsel which recommends to Brotherhood members
and their families the names of lawyers whom the Brotherhood
believes to be honest and competent. Finding that the Brotherhood's
plan resulted in "channeling all, or substantially all," the
workers' claims to lawyers chosen by the Department of Legal
Counsel, the court issued an injunction against the Brotherhood's
carrying out its plan in Virginia. The Supreme Court of Appeals of
Virginia affirmed summarily over objections that the injunction
abridges the Brotherhood's rights under the First and Fourteenth
Amendments, which guarantee freedom of speech, petition and
assembly. We granted certiorari to consider this constitutional
question in the light of our recent decision in NAACP v.
Button, 371 U. S. 415
] 372 U.S. 905.
The Brotherhood's plan is not a new one. Its roots go back to
1883, when the Brotherhood was founded as a fraternal and mutual
benefit society to promote the welfare of the trainmen and "to
protect their families by the exercise of benevolence, very needful
in a calling so
Page 377 U. S. 3
hazardous as ours. . . ." [Footnote 3
] Railroad work at that time was indeed
dangerous. In 1888, the odds against a railroad brakeman's dying a
natural death were almost four to one; [Footnote 4
] the average life expectancy of a switchman in
1893 was seven years. [Footnote
] It was quite natural, therefore, that railroad workers
combined their strength and efforts in the Brotherhood in order to
provide insurance and financial assistance to sick and injured
members and to seek safer working conditions. The Trainmen and
other railroad Brotherhoods were the moving forces that brought
about the passage of the Safety Appliance Act [Footnote 6
] in 1893 to make railroad work less
dangerous; they also supported passage of the Federal Employers'
Liability Act [Footnote 7
1908 to provide for recovery of damages for injured railroad
workers and their families by doing away with harsh and technical
common law rules which sometimes made recovery difficult or even
impossible. It soon became apparent to the railroad workers,
however, that simply having these federal statutes on the books was
not enough to assure that the workers would receive the full
benefit of the compensatory damages Congress intended they should
have. Injured workers or their families often fell prey, on the one
hand, to persuasive claims adjusters eager to gain a quick and
Page 377 U. S. 4
for their railroad employers, or on the other to lawyers either
not competent to try these lawsuits against the able and
experienced railroad counsel or too willing to settle a case for a
It was to protect against these obvious hazards to the injured
man or his widow that the workers, through their Brotherhood, set
up their Legal Aid Department, since renamed Department of Legal
Counsel, the basic activities of which the court below has
enjoined. Under their plan, the United States was divided into
sixteen regions, and the Brotherhood selected, on the advice of
local lawyers and federal and state judges, a lawyer or firm in
each region with a reputation for honesty and skill in representing
plaintiffs in railroad personal injury litigation. When a worker
was injured or killed, the secretary of his local lodge would go to
him or to his widow or children and recommend that the claim not be
settled without first seeing a lawyer, and that, in the
Brotherhood's judgment, the best lawyer to consult was the counsel
selected by it for that area. [Footnote 8
There is a dispute between the parties as to the exact meaning
of the decree rendered below, but the Brotherhood in this Court
objects specifically to the provisions which enjoin it
". . . from holding out lawyers selected by it as the only
approved lawyers to aid the members or their families; . . . or in
any other manner soliciting or encouraging such legal employment of
the selected lawyers; . . . and from doing any act or combination
of acts, and from formulating and putting into practice any plan,
pattern or design, the
Page 377 U. S. 5
result of which is to channel legal employment to any particular
lawyer or group of lawyers. . . . [Footnote 9
The Brotherhood admits that it advises injured members and their
dependents to obtain legal advice before making settlement of their
claims, and that it recommends particular attorneys to handle such
claims. The result of the plan, the Brotherhood admits, is to
channel legal employment to the particular lawyers approved by the
Brotherhood as legally and morally competent to handle injury
claims for members and their families. It is the injunction against
this particular practice which the Brotherhood, on behalf of its
members, contends denies them rights guaranteed by the First and
Fourteenth Amendments. We agree with this contention.
It cannot be seriously doubted that the First Amendment's
guarantees of free speech, petition and assembly give railroad
workers the right to gather together for the lawful purpose of
helping and advising one another in asserting the rights Congress
gave them in the Safety Appliance Act and the Federal Employers'
Liability Act, statutory rights which would be vain and futile if
the workers could not talk together freely as to the best
Page 377 U. S. 6
course to follow. The right of members to consult with each
other in a fraternal organization necessarily includes the right to
select a spokesman from their number who could be expected to give
the wisest counsel. That is the role played by the members who
carry out the legal aid program. And the right of the workers
personally or through a special department of their Brotherhood to
advise concerning the need for legal assistance -- and, most
importantly, what lawyer a member could confidently rely on -- is
an inseparable part of this constitutionally guaranteed right to
assist and advise each other.
Virginia undoubtedly has broad powers to regulate the practice
of law within its borders, [Footnote 10
] but we have had occasion in the past to
recognize that in regulating the practice of law a State cannot
ignore the rights of individuals secured by the Constitution.
] For, as we
said in NAACP v. Button, supra,
at 371 U. S. 429
"a State cannot foreclose the exercise of constitutional rights by
mere labels." Here, what Virginia has sought to halt is not a
commercialization of the legal profession which might threaten the
moral and ethical fabric of the administration of justice. It is
not "ambulance chasing." The railroad workers, by recommending
competent lawyers to each other, obviously are not themselves
engaging in the practice of law, nor are they or the lawyers
Page 377 U. S. 7
they select parties to any soliciting of business. It is
interesting to note that, in Great Britain, unions do not simply
recommend lawyers to members in need of advice -- they retain
counsel, paid by the union, to represent members in personal
lawsuits, [Footnote 12
practice similar to that which we upheld in NAACP v. Button,
A State could not, by invoking the power to regulate the
professional conduct of attorneys, infringe in any way the right of
individuals and the public to be fairly represented in lawsuits
authorized by Congress to effectuate a basic public interest.
Laymen cannot be expected to know how to protect their rights when
dealing with practiced and carefully counseled adversaries, cf.
Gideon v. Wainwright, 372 U. S. 335
for them to associate together to help one another to preserve and
enforce rights granted them under federal laws cannot be condemned
as a threat to legal ethics. [Footnote 13
] The State can no more keep these workers
from using their cooperative plan to advise one another than it
could use more direct means to bar them from resorting to the
courts to vindicate their legal rights. The right to petition the
courts cannot be so handicapped.
Only last Term, we had occasion to consider an earlier attempt
by Virginia to enjoin the National Association for the Advancement
of Colored People from advising prospective litigants to seek the
assistance of particular attorneys. In fact, in that case, unlike
this one, the attorneys were actually employed by the association
which recommended them, and recommendations were made even to
nonmembers. NAACP v. Button, supra.
We held that,
"although the petitioner has amply shown that its activities
fall within the First Amendment's
Page 377 U. S. 8
protections, the State has failed to advance any substantial
regulatory interest, in the form of substantive evils flowing from
petitioner's activities, which can justify the broad prohibitions
which it was imposed."
371 U.S. at 371 U. S. 444
] In the present
case, the State again has failed to show any appreciable public
interest in preventing the Brotherhood from carrying out its plan
to recommend the lawyers it selects to represent injured workers.
The Brotherhood's activities fall just as clearly within the
protection of the First Amendment. And the Constitution protects
the associational rights of the members of the union precisely as
it does those of the NAACP.
We hold that the First and Fourteenth Amendments protect the
right of the members, through their Brotherhood, to maintain and
carry out their plan for advising workers who are injured to obtain
legal advice and for recommending specific lawyers. Since the part
of the decree to which the Brotherhood objects infringes those
rights, it cannot stand, and, to the extent any other part of the
decree forbids these activities, it too must fall. And, of course,
lawyers accepting employment under this constitutionally protected
plan have a like protection which the State cannot abridge.
The judgment and decree are vacated, and the case is remanded
for proceedings not inconsistent with this opinion.
It is so ordered.
MR. JUSTICE STEWART took no part in the disposition of this
Page 377 U. S. 9
The investigator and the Regional Counsel were not served with
process, and are not parties.
We do not find it necessary to consider the Brotherhood's
additional argument that the decree violates the Brotherhood's
right to represent workers, which is guaranteed by the Railway
Labor Act, 44 Stat. 577, as amended, 45 U.S.C. §§ 151-188.
Constitution of the Brotherhood of Railroad Trainmen and
Brotherhood of Railroad Trainmen Insurance Department,
Interstate Commerce Commission, Third Annual Report (1889)
Griffith, "The Vindication of a National Public Policy Under the
Federal Employers' Liability Act," 18 Law and Contemp.Prob. 160,
27 Stat. 531, as amended, 46 U.S.C. §§ 1-43.
35 Stat. 65, as amended, 45 U.S.C. §§ 51-60. An earlier version
of the law, passed two years earlier, 34 Stat. 232, had been held
unconstitutional. Employers' Liability Cases, 207 U.
. The constitutionality of the 1908 statute was
sustained in the Second Employers' Liability Cases,
223 U. S. 1
The Brotherhood also provides a staff, now at its own expense,
to investigate accidents to help gather evidence for use by the
injured worker or his family should a trial be necessary to
vindicate their rights.
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.
. 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. Because of our disposition of the
case, we do not consider the Brotherhood's claim that the findings
of the court were not supported by substantial evidence.
The Bar relies on the common law, the Canons of Ethics of the
American Bar Association, adopted into the rules of the Supreme
Court of Appeals of Virginia, 171 Va. xviii, and several Virginia
statutes prohibiting the unauthorized practice of law. The Canons
of Ethics to which the Bar refers prohibit, respectively, stirring
up of litigation, control or exploitation by a lay agency of
professional services of a lawyer, and aiding the unauthorized
practice of law. Canons 28, 35, 47. The statutes respectively set
the qualifications for the practice of law in the State and provide
for injunctions against "running, capping, soliciting, and
maintenance." Virginia Code, 1950, §§ 54-42, 54-83.1.
NAACP v. Button, 371 U. S. 415
Konigsberg v. State Bar, 353 U. S. 252
Schware v. Board of Bar Examiners, 353 U.
Feather, The Essence of Trade Unionism (London,
Drinker, Legal Ethics (1953), 167; Hildebrand
v. State Bar, 36 Cal. 2d
, 515, 225 P.2d 508, 514 (Carter, J., dissenting), 36 Cal.
2d at 521, 225 P.2d at 518 (Traynor, J., dissenting).
See also Gibson v. Florida Legislative Investigation
Comm., 372 U. S. 539
Louisiana ex rel. Gremillion v. NAACP, 366 U.
; Shelton v. Tucker, 364 U.
; Bates v. City of Little Rock,
361 U. S. 516
NAACP v. Alabama ex rel. Patterson, 357 U.
; Schneider v. State, 308 U.
MR. JUSTICE CLARK, whom MR. JUSTICE HARLAN joins,
By its decision today, the Court overthrows state regulation of
the legal profession and relegates the practice of law to the level
of a commercial enterprise. The Court permits a labor union --
contrary to state law -- to engage in the unauthorized practice of
soliciting personal injury cases from among its membership on
behalf of 16 regional attorneys whom its president has placed on
the union's approved list. Local officials of the union call on
each member suffering an injury and seek to secure employment of
these approved attorneys in the prosecution of claims for damages
arising therefrom. Moreover, the union, through its president, not
only controls the appointment and dismissal of the approved
attorney, but also has considerable influence over his fees, and
often controls the disposition of cases. Furthermore, from 1930 to
at least 1959, the union had required these approved attorneys to
pay to it a portion of their fees, usually 25%. Such an arrangement
may even now be in effect through the ruse of reimbursement for
investigatory services rendered by the union. This state of affairs
degrades the profession, proselytes the approved attorneys to
certain required attitudes, and contravenes both the accepted
ethics of the profession and the statutory and judicial rules of
The Court excuses the practice on the policy ground that the
union membership needs a corps of attorneys experienced in personal
injury litigation because ordinary
"lawyers [are] either not competent to try these lawsuits
against the able and experienced railroad counsel or too willing to
settle a case for a quick dollar."
To me, this is a serious indictment of the profession. In the
cases that I have passed on here -- numbering about 177 during the
past 15 years -- I dare say that counsel for the railroad employee
has exhibited advocacy not inferior to that of
Page 377 U. S. 10
his opponent (although I do not remember that any one of the 16
approved attorneys appeared in these cases). Indeed, the railroad
employee has prevailed in practically all of the cases, and the
recoveries have ranged as high as $625,000. See Gallick v.
Baltimore & Ohio R. Co., 372 U. S. 108
(1963); Transcript of Record, p. 7. Under these facts, the Court's
rationale will not stand up, even as a policy ground for approving
this patent violation of the cardinal ethics of our profession and
flagrant disobedience to the law of most of our States.
The Court depends upon NAACP v. Button, 371 U.
(1963), to support its position. But there, the
vital fact was that the claimed privilege was a "form of political
expression" to secure, through court action, constitutionally
protected civil rights. [Footnote
] Personal injury litigation is not a form of political
expression, but rather a procedure for the settlement of damage
claims. No guaranteed civil right is involved. Here, the question
involves solely the regulation of the profession, a power long
recognized as belonging peculiarly to the State. Button, as well as
its ancestry cited by the majority in the footnotes, is not
Finally, no substantive evil would result from the activity
permitted in Button.
But here, the past history of the
union indicates the contrary. Its Legal Aid Department (now the
Department of Legal Counsel) was set up in 1930 for the admitted
purposes of advising members "relative to their rights respecting
claims for damages" and assisting them "in negotiating settlements.
. . ." The Department had a complete reporting service on all
Page 377 U. S. 11
injuries or deaths suffered by its members, regional
investigators to whom such reports were referred, and the 16
approved regional counsel (many of whom remain the same today) to
whom the cases were channeled for prosecution and who split their
fees with the union. And, what is of even more significance, the
trial court in this case found "that the defendant Brotherhood
still adheres to the pattern and design of the plan formulated and
implemented in 1930."
The union admits that it did operate in this manner until 1959,
but says that it has now reformed its operation. But the record
shows that this identical union plan has been before several other
courts, [Footnote 2/2
] and, while
the union has repeatedly promised to reform, as here, it has
consistently renewed the same practices. But even if the union has
sincerely reformed, which I doubt, the plan it now proposes to
follow is subject to the same deficiencies. It includes: the
approval of 16 regional attorneys by the president of the union,
who also has power to discharge them at his pleasure; the
solicitation of all injured members by the local officials of the
Brotherhood who urge the employment of an approved counsel; the
furnishing of the name of the approved counsel to the injured
brother as the only attorney approved by the Brotherhood; the
furnishing of the names and addresses of injured members to the
approved attorneys; the furnishing of investigative services to the
approved attorney, the cost of which, it is indicated, comes from
the fees received by the latter; and, finally, the "tooting" of the
approved attorneys in union literature and meetings.
Page 377 U. S. 12
I do not read the decree approved by the State as prohibiting
union members from recommending an attorney to their brothers in
the union. Virginia has sought only to halt the gross abuses of
channeling and soliciting litigation which have been going on here
for 30 years. The potential for evil in the union's system is
enormous, and, in my view, will bring disrepute to the legal
profession. The system must also work to the disadvantage of the
Brotherhood members by directing their claims into the hands of the
16 approved attorneys, who are subject to the control of one man,
the president of the union. Finally, it will encourage further
departures from the high standards set by canons of ethics, as well
as by state regulatory procedures, and will be a green light to
other groups who for years have attempted to engage in similar
practices. E.g., People ex rel., Chicago Bar Ass'n v. Chicago
362 Ill. 50, 199 N.E. 1; Rhode Island Bar
Ass'n v. Automobile Service Ass'n,
55 R.I. 122, 179 A. 139;
cf. Semler v. Oregon State Board of Dental Examiners,
294 U. S. 608
(1935); Williamson v. Lee Optical of Oklahoma, Inc.,
348 U. S. 483
"In the context of NAACP objectives, litigation is not a
technique of resolving private differences; it is a means for
achieving the lawful objectives of equality of treatment by all
government, federal, state and local, for the members of the Negro
community in this country. It is thus a form of political
NAACP v. Button, supra,
at 371 U. S.
E.g., In re Petition of Committee on Rule 28 of the
Cleveland Bar Ass'n,
15 Ohio Law Abst. 106 (1933); In re
Brotherhood of Railroad Trainmen, 13
Ill. 2d 391
(1958); In re O'Neill, 5 F. Supp.
(E.D.N.Y.1933); Young v. Gulf M. & O. R. Co., No.
3957 (E.D.Mo.1946); Reynolds v. Gulf M.O. & Texas Pac. R.
No. 772 (E.D.Tenn.1946); North Carolina ex rel.
McLean v. Hice,
Superior Ct. of N.C., County of Buncombe