|National Association for the Advancement of Colored People v. Button
202 Va. 142, 116 S.E.2d 55, reversed.
[ Brennan ]
[ Douglas ]
[ White ]
[ Harlan ]
National Association for the Advancement of Colored People v. Button
CERTIORARI TO THE SUPREME COURT OF APPEALS OF VIRGINIA
MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK and MR. JUSTICE STEWART join, dissenting.
No member of this Court would disagree that the validity of state action claimed to infringe rights assured by the Fourteenth Amendment is to be judged by the same basic constitutional standards whether or not racial problems are involved. No worse setback could befall the great principles established by Brown v. Board of Education, 347 U.S. 483, than to give fair-minded persons reason to think otherwise. With all respect, I believe that the striking down of this Virginia statute cannot be squared with accepted constitutional doctrine in the domain of state regulatory power over the legal profession.
At the outset, the factual premises on which the Virginia Supreme Court of Appeals upheld the application of Chapter 33 to the activities of the NAACP in the area of litigation, as well as the scope of that court's holding, should be delineated.
First, the lawyers who participate in litigation sponsored by petitioner are, almost without exception, members of the legal staff of the NAACP Virginia State Conference. (It is, in fact, against Conference policy to [p449] give financial support to litigation not handled by a staff lawyer.) As such, they are selected by petitioner, are compensated by it for work in litigation (whether or not petitioner is a party thereto), and, so long as they remain on the staff, are necessarily subject to its directions. As the Court recognizes, it is incumbent on staff members to agree to abide by NAACP policies.
Second, it is equally clear that the NAACP's directions, or those of its officers and divisions, to staff lawyers cover many subjects relating to the form and substance of litigation. Thus, in 1950, it was resolved at a Board of Directors meeting that:
Pleadings in all educational cases -- the prayer in the pleading and proof be aimed at obtaining education on a non-segregated basis, and that no relief other than that will be acceptable as such.
Further, that all lawyers operating under such rule will urge their client and the branches of the Association involved to insist on this final relief.
The minutes of the meeting went on to state:
Mr. Weber inquired if this meant that the branches would be prohibited from starting equal facility cases, and the Special Counsel said it did.
In 1955, a South-wide NAACP Conference issued directions to all NAACP branches outlining the procedure for obtaining desegregation of schools and indicating the point in the procedure at which litigation should be brought and the matter turned over to the "Legal Department." At approximately the same time, the Executive Secretary of the Virginia State Conference issued a directive urging that, in view of the possibility of an extended court fight, "discretion and care should be exercised to secure petitioners who will -- if need be -- go all the way."
A report issued several years later, purporting to give an "up to date picture" of action taken in Virginia by [p450] petitioner stated: "Selection of suit sites reserved for legal staff"; "State legal staff ready for action in selected areas", and
The majority of our branches are willing to support legal action or any other program leading to early desegregation of schools that may be suggested by the National and State Conference officers.
In short, as these and other materials in the record show, the form of pleading, the type of relief to be requested, and the proper timing of suits have to a considerable extent, if not entirely, been determined by the Conference in coordination with the national office.
Third, contrary to the conclusion of the Federal District Court in the original federal proceeding, NAACP v. Patty, 159 F.Supp. 503, 508-509, the present record establishes that the petitioner does a great deal more than to advocate litigation and to wait for prospective litigants to come forward. In several instances, especially in litigation touching racial discrimination in public schools, specific directions were given as to the types of prospective plaintiffs to be sought, and staff lawyers brought blank forms to meetings for the purpose of obtaining signatures authorizing the prosecution of litigation in the name of the signer.
Fourth, there is substantial evidence indicating that the normal incidents of the attorney-client relationship were often absent in litigation handled by staff lawyers and financed by petitioner. Forms signed by prospective litigants have on occasion not contained the name of the attorney authorized to act. In many cases, whether or not the form contained specific authorization to that effect, additional counsel have been brought into the action by staff counsel. There were several litigants who testified that at no time did they have any personal dealings with the lawyers handling their cases, nor were they aware until long after the event that suits had been filed in their names. This is not to suggest that the petitioner [p451] has been shown to have sought plaintiffs under false pretenses or by inaccurate statements. But there is no basis for concluding that these were isolated incidents, or that petitioner's methods of operation have been such as to render these happenings out of the ordinary.
On these factual premises, amply supported by the evidence, the Virginia Supreme Court of Appeals held that petitioner and those associated with it
solicit prospective litigants to authorize the filing of suits by NAACP and Fund [Educational Defense Fund] lawyers, who are paid by the Conference and controlled by NAACP policies . . .
(202 Va. at 159; 116 S.E.2d at 68-69), and concluded that this conduct violated Chapter 33 as well as Canons 35 and 47 of the Canons of Professional Ethics of the American Bar Association, which had been adopted by the Virginia courts more than 20 years ago.
At the same time, the Virginia court demonstrated a responsible awareness of two important limitations on the State's power to regulate such conduct. The first of these is the longstanding recognition, incorporated in the Canons, of the different treatment to be accorded to those aiding the indigent in prosecuting or defending against legal proceedings. The second, which, coupled with the first, led the court to strike down Chapter 36 (ante, p. 418), is the constitutional right of any person to express his views, to disseminate those views to others, and to advocate action designed to achieve lawful objectives, which in the present case are also constitutionally due. Mindful of these limitations, the state court construed Chapter 33 not to prohibit petitioner and those associated with it from acquainting colored persons with what it believes to be their rights, or from advising them to assert those rights in legal proceedings, but only from "solicit[ing] legal business for their attorneys or any [p452] particular attorneys." Further, the court determined that Chapter 33 did not preclude petitioner from contributing money to persons to assist them in prosecuting suits, if the suits
have not been solicited by the appellants [the NAACP and Defense Fund] or those associated with them, and channeled by them to their attorneys or any other attorneys.
In my opinion the litigation program of the NAACP, as shown by this record, falls within an area of activity which a State may constitutionally regulate. (Whether it was wise for Virginia to exercise that power in this instance is not, of course, for us to say.) The Court's contrary conclusion rests upon three basic lines of reasoning: (1) that, in the context of the racial problem, the NAACP's litigating activities are a form of political expression within the protection of the First Amendment, as extended to the States by the Fourteenth; (2) that no sufficiently compelling subordinating state interest has been shown to justify Virginia's particular regulation of these activities, and (3) that, in any event, Chapter 33 must fall because of vagueness, in that, as construed by the state court, the line between the permissible and impermissible under the statute is so uncertain as potentially to work a stifling of constitutionally protected rights. Each of these propositions will be considered in turn.
Freedom of expression embraces more than the right of an individual to speak his mind. It includes also his right to advocate and his right to join with his fellows in an effort to make that advocacy effective. Thomas v. Collins, 323 U.S. 516; NAACP v. Alabama, 357 U.S. 449; Bates v. Little Rock, 361 U.S. 516. And just as it includes the right jointly to petition the legislature for redress of grievances, see Eastern R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 137-138, [p453] so it must include the right to join together for purposes of obtaining judicial redress. We have passed the point where litigation is regarded as an evil that must be avoided if some accommodation short of a lawsuit can possibly be worked out. Litigation is often the desirable and orderly way of resolving disputes of broad public significance, and of obtaining vindication of fundamental rights. This is particularly so in the sensitive area of racial relationships.
But to declare that litigation is a form of conduct that may be associated with political expression does not resolve this case. Neither the First Amendment nor the Fourteenth constitutes an absolute bar to government regulation in the fields of free expression and association. This Court has repeatedly held that certain forms of speech are outside the scope of the protection of those Amendments, and that, in addition, "general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise," are permissible "when they have been found justified by subordinating valid governmental interests." [n1] The problem in each such case is to weigh the legitimate interest of the State against the effect of the regulation on individual rights.
An analogy may be drawn between the present case and the rights of working men in labor disputes. At the heart of these rights are those of a laborer or a labor representative to speak: to inform the public of his disputes and to urge his fellow workers to join together for mutual aid and protection. So important are these particular rights that, absent a clear and present danger of the gravest evil, [p454] the State not only is without power to impose a blanket prohibition on their exercise, Thornhill v. Alabama, 310 U.S. 88, but also may not place any significant obstacle in their path, Thomas v. Collins, 323 U.S. 516.
But as we move away from speech alone and into the sphere of conduct -- even conduct associated with speech or resulting from it -- the area of legitimate governmental interest expands. A regulation not directly suppressing speech or peaceable assembly, but having some impact on the form or manner of their exercise will be sustained if the regulation has a reasonable relationship to a proper governmental objective and does not unduly interfere with such individual rights. Thus, although the State may not prohibit all informational picketing, it may prevent mass picketing, Allen-Bradley Local v. Wisconsin Board, 315 U.S. 740, and picketing for an unlawful objective, Giboney v. Empire Storage & Ice Co., 336 U.S. 490. Although it may not prevent advocacy of union membership, it can to some degree inquire into and define the qualifications of those who solicit funds from prospective members or who hold other positions of responsibility. [n2] A legislature may not wholly eliminate the right of collective action by workingmen, [n3] but it may to a significant extent dictate the form their organization shall take, [n4] and may limit the demands that the organization may make on employers and others, see, e.g., International Brotherhood of Electrical Workers v. Labor Board, 341 U.S. 694, 705.
Turning to the present case, I think it evident that the basic rights in issue are those of the petitioner's members [p455] to associate, to discuss, and to advocate. Absent the gravest danger to the community, these rights must remain free from frontal attack or suppression, and the state court has recognized this in striking down Chapter 36 and in carefully limiting the impact of Chapter 33. But litigation, whether or not associated with the attempt to vindicate constitutional rights, is conduct; it is speech plus. Although the State surely may not broadly prohibit individuals with a common interest from joining together to petition a court for redress of their grievances, it is equally certain that the State may impose reasonable regulations limiting the permissible form of litigation and the manner of legal representation within its borders. Thus, the State may, without violating protected rights, restrict those undertaking to represent others in legal proceedings to properly qualified practitioners. And it may determine that a corporation or association does not itself have standing to litigate the interests of its shareholders or members -- that only individuals with a direct interest of their own may join to press their claims in its courts. Both kinds of regulation are undeniably matters of legitimate concern to the State, and their possible impact on the rights of expression and association is far too remote to cause any doubt as to their validity.
So here, the question is whether the particular regulation of conduct concerning litigation has a reasonable relation to the furtherance of a proper state interest, and whether that interest outweighs any foreseeable harm to the furtherance of protected freedoms.
The interest which Virginia has here asserted is that of maintaining high professional standards among those who practice law within its borders. This Court has consistently recognized the broad range of judgments that a State may properly make in regulating any profession. [p456] See, e.g., Dent v. West Virginia, 129 U.S. 114; Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608; Williamson v. Lee Optical Co., 348 U.S. 483. But the regulation of professional standards for members of the bar comes to us with even deeper roots in history and policy, since courts for centuries have possessed disciplinary powers incident to the administration of justice. See Cohen v. Hurley, 366 U.S. 117, 123-124; Konigsberg v. State Bar, 366 U.S. 36; Martin v. Walton, 368 U.S. 25. The regulation before us has its origins in the longstanding common law prohibitions of champerty, barratry, and maintenance, the closely related prohibitions in the Canons of Ethics against solicitation and intervention by a lay intermediary, and statutory provisions forbidding the unauthorized practice of law. [n5] The Court [p457] recognizes this formidable history, but puts it aside in the present case on the grounds that there is here no element of malice or of pecuniary gain, that the interests of the NAACP are not to be regarded as substantially different from those of its members, and that we are said to be dealing here with a matter that transcends mere legal ethics -- the securing of federally guaranteed rights. But these distinctions are too facile. They do not account for the full scope of the State's legitimate interest in regulating professional conduct. For although these professional standards may have been born in a desire to curb malice and self-aggrandizement by those who would use clients and the courts for their own pecuniary ends, they have acquired a far broader significance during their long development.
First, with regard to the claimed absence of the pecuniary element, it cannot well be suggested that the attorneys here are donating their services, since they are, in fact, compensated for their work. Nor can it tenably be argued that petitioner's litigating activities fall into the accepted category of aid to indigent litigants. [n6] The reference is presumably to the fact that petitioner itself is a nonprofit organization not motivated by desire for financial gain, but by public interest, and to the fact that no monetary stakes are involved in the litigation.
But a State's felt need for regulation of professional conduct may reasonably extend beyond mere "ambulance chasing." In People ex rel. Courtney v. Association of [p458] Real Estate Tax-payers, 354 Ill. 102, 187 N.E. 823, a nonprofit corporation was held in contempt for engaging in the unauthorized practice of law. The Association was formed by citizens desiring to mount an attack on the constitutionality of certain tax rolls. Membership was solicited by the circulation of blank forms authorizing employment of counsel on the applicant's behalf and asking that property be listed for litigation. The attorneys were selected, paid, and controlled by the corporation, which made their services available to the taxpayer members at no cost. [n7]
Similarly, several decisions have condemned the provision of counsel for their members by nonprofit automobile clubs, even in instances involving challenges to the validity of a statute or ordinance. In re Maclub of America, Inc., 295 Mass. 45, 3 N.E.2d 272; [n8] People ex rel. Chicago Bar Assn. v. Chicago Motor Club, 362 Ill. 50, 199 N.E. l; see Opinion 8, Opinions of the Committee on Professional Ethics and Grievances, American Bar Assn.
Of particular relevance here is a series of nationwide adjudications culminating in 1958 in In re Brotherhood of [p459] Railroad Trainmen, 13 Ill.2d 391, 150 N.E.2d 163. That was a proceeding, remarkably similar to the present one, for a declaratory judgment that the activities of the Brotherhood in assisting with the prosecution of its members' personal injury claims under the Federal Employers' Liability Act [n9] were not inconsistent with a state law forbidding lay solicitation of legal business. The court found that each lodge of the Brotherhood appointed a member to file accident reports with the central office, and these reports were sent by the central office to a regional investigator, who, equipped with a contract form for the purpose, would urge the injured member to consult and employ one of the 16 regional attorneys retained by the Brotherhood. The regional counsel offered his services to the injured person on the basis of a contingent fee, the amount of which was fixed by the Brotherhood. The counsel themselves bore the costs of investigation and suit and of operating the Union's legal aid department.
The Union argued that it was not motivated by any desire for profit; that it had an interest commensurate with that of its members in enforcement of the federal statute, and that the advantage taken of injured parties by unscrupulous claims adjustors made it essential to furnish economical recourse to dependable legal assistance
The court ruled against the Union on each of these points. It permitted the organization to maintain an investigative staff, to advise its members regarding their legal rights, and to recommend particular attorneys, but it required the Union to stop fixing fees, to sever all financial connections with counsel, and to cease the distribution of contract forms.
The practices of the Brotherhood, similar in so many respects to those engaged in by the petitioner here, have [p460] been condemned by every state court which has considered them. Petition of Committee on Rule 28 of the Cleveland Bar Assn., 15 Ohio L.Abs. 106; In re O'Neill, 5 F.Supp. 465 (D.C.E.D.N.Y.); Hildebrand v. State Bar, 36 Cal.2d 504, 225 P.2d 508; Doughty v. Grills, 37 Tenn.App. 63, 260 S.W.2d 379, and see Atchison, T. & S.F. R. Co. v. Jackson, 235 F.2d 390, 393 (C.A. 10th Cir.). And for similar opinions on related questions by bar association committees, see Opinion A, Opinions of the Committee on Unauthorized Practice of the Law, American Bar Assn., 36 A.B.A.J. 677; Opinion 773, Committee on Professional Ethics, Assn. of the Bar of the City of New York.
Underlying this impressive array of relevant precedent is the widely shared conviction that avoidance of improper pecuniary gain is not the only relevant factor in determining standards of professional conduct. Running perhaps even deeper is the desire of the profession, of courts, and of legislatures to prevent any interference with the uniquely personal relationship between lawyer and client and to maintain untrammeled by outside influences the responsibility which the lawyer owes to the courts he serves.
When an attorney is employed by an association or corporation to represent individual litigants, two problems arise, whether or not the association is organized for profit and no matter how unimpeachable its motives. The lawyer becomes subject to the control of a body that is not itself a litigant and that, unlike the lawyers it employs, is not subject to strict professional discipline as an officer of the court. In addition, the lawyer necessarily finds himself with a divided allegiance -- to his employer and to his client -- which may prevent full compliance with his basic professional obligations. The matter was well stated, in a different but related context, by the New [p461] York Court of Appeals in In re Co-operative Law Co., 198 N.Y. 479, 483-484, 92 N.E. 15, 16:
The relation of attorney and client is that of master and servant in a limited and dignified sense, and it involves the highest trust and confidence. It cannot be delegated without consent, and it cannot exist between an attorney employed by a corporation to practice law for it, and a client of the corporation, for he would be subject to the directions of the corporation, and not to the directions of the client.
There has, to be sure, been professional criticism of certain applications of these policies. [n10] But the continued vitality of the principles involved is beyond dispute, [n11] and, at this writing, it is hazardous, at best, to predict the direction of the future. For us, however, any such debate is without relevance, since it raises questions of social policy which have not been delegated to this Court for decision. Our responsibility is simply to determine the extent of the State's legitimate interest and to decide whether the course adopted bears a sufficient relation to that interest to fall within the bounds set by the Constitution .
Second, it is claimed that the interests of petitioner and its members are sufficiently identical to eliminate any "serious danger" of "professionally reprehensible conflicts of interest." Ante, p. 443. Support for this claim is sought in our procedural holding in NAACP v. Alabama, 357 U.S. [p462] 449, 458-459. But from recognizing, as in that case, that the NAACP has standing to assert the rights of its members when it is a real party in interest, it is plainly too large a jump to conclude that, whenever individuals are engaged in litigation involving claims that the organization promotes, there cannot be any significant difference between the interests of the individual and those of the group.
The NAACP may be no more than the sum of the efforts and views infused in it by its members, but the totality of the separate interests of the members and others whose causes the petitioner champions, even in the field of race relations, may far exceed in scope and variety that body's views of policy, as embodied in litigating strategy and tactics. Thus, it may be in the interest of the Association in every case to make a frontal attack on segregation, to press for an immediate breaking down of racial barriers, and to sacrifice minor points that may win a given case for the major points that may win other cases too. But in a particular litigation, it is not impossible that, after authorizing action in his behalf, a Negro parent, concerned that a continued frontal attack could result in schools closed for years, might prefer to wait with his fellows a longer time for good faith efforts by the local school board than is permitted by the centrally determined policy of the NAACP. Or he might see a greater prospect of success through discussions with local school authorities than through the litigation deemed necessary by the Association. The parent, of course, is free to withdraw his authorization, but is his lawyer, retained and paid by petitioner and subject to its directions on matters of policy, able to advise the parent with that undivided allegiance that is the hallmark of the attorney-client relation? I am afraid not.
Indeed, the potential conflict in the present situation is perhaps greater than those in the union, automobile club, and some of the other cases discussed above, pp. 457-460. [p463] For here, the interests of the NAACP go well beyond the providing of competent counsel for the prosecution or defense of individual claims; they embrace broadly fixed substantive policies that may well often deviate from the immediate, or even long-range, desires of those who choose to accept its offers of legal representations. This serves to underscore the close interdependence between the State's condemnation of solicitation and its prohibition of the unauthorized practice of law by a lay organization.
Third, it is said that the practices involved here must stand on a different footing because the litigation that petitioner supports concerns the vindication of constitutionally guaranteed rights. [n12]
But surely state law is still the source of basic regulation of the legal profession, whether an attorney is pressing a federal or a state claim within its borders. See In re Brotherhood of Railroad Trainmen, supra. The true question is whether the State has taken action which unreasonably obstructs the assertion of federal rights. Here, it cannot be said that the underlying state policy is inevitably inconsistent with federal interests. The State has sought to prohibit the solicitation and sponsoring of litigation by those who have no standing to initiate that litigation themselves and who are not simply coming to the [p464] assistance of indigent litigants. Thus, the state policy is not unrelated to the federal rules of standing -- the insistence that federal court litigants be confined to those who can demonstrate a pressing personal need for relief. See McCabe v. Atchison, T. & S.F. R. Co., 235 U.S. 151, 162; Massachusetts v. Mellon, 262 U.S. 447, 488; cf. Stark v. Wickard, 321 U.S. 288, 304-305, and cases cited therein. This is a requirement of substance, as well as form. It recognizes that, although litigation is not something to be avoided at all costs, it should not be resorted to in undue haste, without any effort at extrajudicial resolution, and that those lacking immediate private need may make unnecessary broad attacks based on inadequate records. Nor is the federal interest in impeding precipitate resort to litigation diminished when that litigation concerns constitutional issues; if anything, it is intensified. United Public Workers v. Mitchell, 330 U.S. 75, 86-91.
There remains to be considered on this branch of the argument the question whether this particular exercise of state regulatory power bears a sufficient relation to the established and substantial interest of the State to overcome whatever indirect impact this statute may have on rights of free expression and association.
Chapter 33, as construed, does no more than prohibit petitioner and those associated with it from soliciting legal business for its staff attorneys or, under a fair reading of the state court's opinion and amounting to the same thing, for "outside" attorneys who are subject to the Association's control in the handling of litigation which it refers to them. See pp. 466-468, infra. Such prohibitions bear a strong and direct relation to the area of legitimate state concern. In matters of policy, involving the form, timing, and substance of litigation, such attorneys are subject to the directions of petitioner, and not of those nominally their clients. Further, the methods used to obtain litigants are not conducive to encouraging the kind of attorney-client [p465] relationships which the State reasonably may demand. There inheres in these arrangements, then, the potentialities of divided allegiance and diluted responsibility which the State may properly undertake to prevent.
The impact of such a prohibition on the rights of petitioner and its members to free expression and association cannot well be deemed so great as to require that it be struck down in the face of this substantial state interest. The important function of organizations like petitioner in vindicating constitutional rights is not, of course, to be minimized, but that function is not, in my opinion, substantially impaired by this statute. Of cardinal importance, this regulatory enactment, as construed, does not in any way suppress assembly, or advocacy of litigation in general or in particular. Moreover, contrary to the majority's suggestion, it does not, in my view, prevent petitioner from recommending the services of attorneys who are not subject to its directions and control. See pp. 460-468, infra. And since petitioner may contribute to those who need assistance, the prohibition should not significantly discourage anyone with sufficient interest from pressing his claims in litigation or from joining with others similarly situated to press those claims. It prevents only the solicitation of business for attorneys subject to petitioner's control, and, as so limited, should be sustained.
The Court's remaining line of reasoning is that Chapter 33 as construed (hereafter sometimes simply "the statute") must be struck down on the score of vagueness and ambiguity. I think that this "vagueness" concept has no proper place in this case, and only serves to obscure, rather than illuminate, the true questions presented.
The Court's finding of ambiguity rests on the premise that the statute may prohibit mere recommendation of "any particular attorney," whether or not a member of [p466] the NAACP's legal staff or otherwise subject to the Association's direction and control. Proceeding from this premise, the Court ends by invalidating the entire statute on the basis that this alleged vagueness too readily lends itself to the stifling of protected activity.
The cardinal difficulty with this argument is that there simply is no real uncertainty in the statute, as the state court found, 202 Va. at 154, 116 S.E.2d at 65, or in that court's construction of it. It is true that the concept of vagueness has been used to give "breathing space" to "First Amendment freedoms," see Amsterdam, Note, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U. of Pa.L.Rev. 67, but it is also true, as that same commentator has well stated, that "[v]agueness is not an extraneous ploy or a judicial deus ex machina." Id. at 88. There is, in other words, "an actual vagueness component in the vagueness decisions." Ibid. And the test is whether the law in question has established standards of guilt sufficiently ascertainable that men of common intelligence need not guess at its meaning. Connally v. General Constr. Co., 269 U.S. 385; Winters v. New York, 333 U.S. 507. Laws that have failed to meet this standard are, almost without exception, those which turn on language calling for the exercise of subjective judgment, unaided by objective norms. E.g., United States v. L. Cohen Grocery Co., 255 U.S. 81 ("unreasonable" charges); Winters v. New York, supra, ("so massed as to become vehicles for inciting"); Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495 ("sacrilegious"). No such language is to be found here.
Ambiguity in the present statute can be made to appear only at the price of strained reading of the state court's opinion. As construed, the statute contains two types of prohibition relating to solicitation. The first prohibits such groups as the NAACP and the Educational Defense Fund, "their officers, members, affiliates, voluntary workers [p467] and attorneys" from soliciting legal business for "their attorneys." [n13] And the state court made it clear that "their attorneys" referred to "attorneys whom they [the NAACP and the Fund] pay, and who are subject to their directions." 202 Va. at 164, 116 S.E.2d at 72. This is the practice with which the state court's opinion is predominantly concerned, and which gave rise to the intensive consideration by that court of the relations between petitioner and its legal staff. Surely there is no element of uncertainty involved in this prohibition. The state court has made it plain that the solicitation involved is not the advocacy of litigation in general or in particular, but only that involved in the handling of litigation by petitioner's own paid and controlled staff attorneys. Compare Thomas v. Collins, 323 U.S. 516.
The second prohibition in the statute is the solicitation by petitioner of legal business for "any particular attorneys" or the channeling of litigation which it supports to "any other attorneys," whether or not they are petitioner's staff attorneys. This language of the state court, coupled primarily with this Court's own notion that Chapter 33, in defining "agents," has departed from common law principles, leads the majority to conclude that the statute may have been interpreted as precluding organizations such as petitioner from simply advising prospective litigants to engage for themselves particular attorneys, whether members of the organization's legal staff or not.
Surely such an idea cannot be entertained with respect to the state court's discussion of the NAACP and its staff attorneys. The record is barren of all evidence that any litigant, in the type of litigation with which this case is concerned, ever attempted to retain for his own account [p468] one of those attorneys, and indeed strongly indicates that such an arrangement would not have been acceptable to the NAACP so long as such a lawyer remained on its legal staff. And the state court's opinion makes it clear that that court was not directing itself to any such situation.
Nor do I think it may reasonably be concluded that the state court meant to preclude the NAACP from recommending "outside" attorneys to prospective litigants, so long as it retained no power of direction over such lawyers. Both in their immediate context and in light of the entire opinion and record below, it seems to me very clear that the phrases "or any particular attorneys" and "or any other attorneys" both have reference only to those "outside" attorneys with respect to whom the NAACP or the Defense Fund bore a relationship equivalent to that existing between them and "their attorneys." [n14] It savors almost of disrespect to the Virginia Supreme Court of Appeals, whose opinion manifests full awareness of the considerations that have traditionally marked the line between professional and unprofessional conduct, to read this part of its opinion otherwise. Indeed, the ambiguity which this Court now finds quite evidently escaped the notice of both petitioner and its counsel, for they did not so much as suggest such an argument in their briefs. Moreover, the kind of approach that the majority takes to the statute is quite inconsistent with the precept that our duty is to construe legislation, if possible, "to save and not to destroy." Labor Board v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30, and cases cited; United States v. Rumely, 345 U.S. 41, 47.
But even if the statute justly lent itself to the now attributed ambiguity, the Court should excise only the ambiguous part of it, not strike down the enactment in [p469] its entirety. Our duty to respect state legislation, and to go no further than we must in declining to sustain its validity, has led to a doctrine of separability in constitutional adjudication, always followed except in instances when its effect would be to leave standing a statute that was still uncertain in its potential application. [n15] See Smith v. California, 361 U.S. 147, 151. Given the "ambiguity" view of the Court, the separability doctrine should at least have been applied here, since what would then remain of Chapter 33 could not conceivably be deemed ambiguous. [n16] In my view, however, the statute as construed below is not ambiguous at all.
Since the majority has found it unnecessary to consider them, only a few words need be said with respect to petitioner's contentions that Chapter 33 deprives it of property without due process of law and denies it equal protection.
The due process claim is disposed of once it appears that this statute falls within the range of permissible state regulation in pursuance of a legitimate goal. Pp. 455-465, supra.
As to equal protection, this position is premised on the claim that the law was directed solely at petitioner's activities on behalf of Negro litigants. But Chapter 33 as it comes to us, with a narrowing construction by the state court that anchors the statute firmly to the common law and to the court's own independently existing supervisory [p470] powers over the Virginia legal profession, leaves no room for any finding of discriminatory purpose. Petitioner is merely one of a variety of organizations that may come within the scope of the longstanding prohibitions against solicitation and unauthorized practice. It would, of course, be open to the petitioner, if the facts should warrant, to claim that Chapter 33 was being enforced discriminatorily as to it and not against others similarly circumstanced. See Yick Wo v. Hopkins, 118 U.S. 356, 373-374. But the present record is barren of any evidence suggesting such unequal application, and we may not presume that it will occur. Leberman v. Van de Carr, 199 U.S. 552, 562-563; Douglas v. Noble, 261 U.S. 165, 170. [n17]
I would affirm.
1. Konigsberg v. State Bar, 366 U.S. 36, 551, and see cases cited therein, including Cox v. New Hampshire, 312 U.S. 569; Chaplinsky v. New Hampshire, 315 U.S. 568"]315 U.S. 568; Breard v. Alexandria, 341 U.S. 622; 315 U.S. 568; Breard v. Alexandria, 341 U.S. 622; Roth v. United States, 354 U.S. 476; Bates v. Little Rock, 361 U.S. 516, 524; Wilkinson v. United States, 365 U.S. 399.
2. See Thomas v. Collins, 323 U.S. 516, 544-545 (concurring opinion); American Communications Assn. v. Douds, 339 U.S. 382; De Veau v. Braisted, 363 U.S. 144.
3. See the discussion in Hague v. C.I.O., 307 U.S. 496, 518, 523-525 (opinion of Mr. Justice Stone).
4. See, e.g., the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 519, 29 U.S.C. (Supp. III) §§ 401 et seq.
5. See 4 Blackstone, Commentaries, 134-136. Even apart from any state statutory provisions, state judiciaries normally consider themselves free, in the exercise of their supervisory authority over the bar, to enforce these prohibitions derived from the common law. See, e.g., In re Co-operative Law Co., 198 N.Y. 479, 92 N.E. 15; People ex rel. Courtney v. Association of Real Estate Taxpayers, 354 111. 102, 187 N.E. 823; In re Maclub of America, Inc., 295 Mass. 45, 3 N.E.2d 272, and cases cited therein. Many States, however, also have statutes dealing with these matters. Some merely incorporate the common law proscriptions of barratry and maintenance. E.g., Del.Code Ann., 1953, Tit. 11, § 371; Mo.Stat.Ann., § 557.470 (Vernon, 1953). Several specifically prohibit the solicitation of legal business for a lawyer by an agent or "runner." E.g., Conn.Gen.Stat., 1958, § 51-87; N.C.Gen.Stat., § 84-38 (1958 Repl. Vol.); Wis.Stat.Ann., § 256.295(1). About 25 States prohibit the unauthorized practice of law by corporations. American Bar Foundation, Unauthorized Practice Statute Book (1961), 78-90.
Virginia's concern with these problems dates back to the beginning of the Commonwealth. Act of December 8, 1792, 1 Va.Stat. 110 (Shepherd, 1835). Sections 54-74 and 54-78, which, as amended, are before us today, were originally enacted in 1932, Va. Acts 1932, cc. 129, 284, and the Virginia Supreme Court of Appeals adopted the American Bar Association Canons of Ethics in haec verba in 1938. Virginia Canons of Professional Ethics, 171 Va. xviii-371v. As in many other States, the judiciary of Virginia has declared its inherent authority to assure proper ethical deportment. See, e.g., Richmond Assn. of Credit Men, Inc., v. Bar Assn., 167 Va. 327, 335-336, 189 S.E. 153, 157.
6. Virginia's policy of promoting aid to indigent suitors is of long standing, see 2 The Papers of Thomas Jefferson (Boyd ed.1950), 628, and the decision of the state court in this case fully implements that policy.
7. The Court, p. 442, n. 25, ante, deals with the Real Estate Taxpayers case simply by referring to it as one in which the "parties and Association attorneys had large sums of money at stake." It is true that the attorneys there (as here) were paid for their services by the Association, although we are not told the amount of the payment to any attorney. It is also true that the constitutional rights which the members were there seeking to assert through the nonprofit Association were property rights, having monetary value. But I fail to see how these factors can be deemed to create an "element of pecuniary gain" which distinguishes the Real Estate Tax-payers case from the present one in any significant respect.
8. The activities of the Association in this Maclub case were more limited than those of the Association in the Real Estate Taxpayers case. The attorneys in Maclub were selected and retained directly by the members, and bills were then submitted to and paid by the Association.
9. 35 Stat. 65 (1908), as amended, 45 U.S.C. §§ 51-60.
10. See, e.g., Weihofen, "Practice of Law by Non-Pecuniary Corporations: A Social Utility," 2 U. of Chi.L.Rev. 119; Drinker, Legal Ethics, 161-167; Traynor, J., dissenting in Hildebrand v. State Bar, supra.
11. In addition to the decisions discussed in the text, further evidence of the attitude of the bench and bar is found in a survey described in McCracken, Report on Observance by the Bar of Stated Professional Standards, 37 Va.L.Rev. 399, 400-401 (1951).
12. It is interesting to note the Court's reliance on Opinion 148, Opinions of the Committee on Professional Ethics and Grievances, American Bar Assn. This opinion, issued in 1935 at the height of the resentment in certain quarters against the New Deal, approved the practice of the National Lawyers Committee of the Liberty League in publicly offering free legal services (without compensation from any source) to anyone who was unable to afford to challenge the constitutionality of legislation which he believed was violating his rights. The opinion may well be debatable as a matter of interpretation of the Canons. But, in any event, I think it wholly untenable to suggest (as the Court does in its holding today) that a contrary opinion regarding paid legal services to nonindigent litigants would be unconstitutional.
13. As a corollary, attorneys are prohibited, by the law as construed, from accepting employment by petitioner in suits solicited by petitioner.
14. The full text of those portions of the state court opinion in which these phrases appear is quoted in footnote 9 of the majority opinion, ante, p. 426.
15. Of course, if we refuse to sustain one part of a state statute, the state court, on remand, may decide that the remainder of the statute can no longer stand, but insofar as that conclusion is reached as a matter of state law, it is of no concern to us.
16. Cf. Stromberg v. California, 283 U.S. 359, in which the state law condemned the displaying of a red flag for any of three purposes and this Court sustained the validity of the law as to two of these purposes but struck it down for vagueness as to the third.
17. It has been suggested that the state law may contain an invidious discrimination because it treats those organizations that have a pecuniary interest in litigation (for example, an insurance company) differently from those that do not. But surely it cannot be said that this distinction, which is so closely related to traditional concepts of privity, lacks any rational basis. The importance of the existence of a pecuniary interest in determining the propriety of sponsoring litigation has long been recognized at common law, both in England, see Findon v. Parker, 11 M. & W. 675, 152 Eng.Rep. 976 (Exch. 1843), and in the United States, see, e.g., Dorwin v. Smith, 35 Vt. 69; Vaughan v. Marable, 64 Ala. 60, 66 67; Smith v. Hartsell, 150 N.C. 71, 63 S.E. 172. The distinction drawn by the Virginia law is not without parallel in the requirement that, in the absence of a statute or rule, a suit in a federal court attacking the validity of a law may be brought only by one who is in immediate danger of sustaining some direct and substantial injury as the result of its enforcement, and not by one who merely "suffers in some indefinite way in common with people generally," or even in common with members of the same race or class. Massachusetts v. Mellon, 262 U.S. 447, 487-488. See McCabe v. Atchison, T. & S.F. R. Co., 235 U.S. 151, 162. And, of course, the motives of the Virginia legislators in enacting Chapter 33 are beyond the purview of this Court's responsibilities. Fletcher v. Peck, 6 Cranch 87, 130; see Arizona v. California, 283 U.S. 423, 455; cf. Tenney v. Brandhove, 341 U.S. 367, 377.