Alan Morrison Text of Fifth Interview: February 2, 2008

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Oral History of
ALAN MORRISON
Fifth Interview – February 2, 2008
______________________________________________________________________________
MR. MARCUS: This is Dan Marcus interviewing Alan Morrison on Saturday, February
2 , the eve of the Super Bowl 2008. nd
So Alan, I think last time we finished with the Goldfarb case and we should resume our
discussion of the other professional cases.
MR. MORRISON: Well, let’s go back a little bit. I think I mentioned to you, the first
time we talked about the lawyer advertising, the Virginia Board of Pharmacy case.
I had decided that minimum fee schedules were certainly one, and the blanket prohibition
on lawyer advertising and solicitation, was another very anticompetitive rule. The
minimum fee schedules were done by the Bar itself. The lawyer advertising rules were
rules of the court. From my work in Goldfarb and from other things, it was pretty clear to
me that antitrust theory we pursued in the minimum fee schedules would not work
because the state court had officially issued the rules and, therefore, under Parker-Brown
they were—it was state action, they were actually supervising it and we had little or no
chance, as it turned out rightly, to be the case when the case ultimately got to the
Supreme Court from another place.
So we decided that there was a First Amendment challenge to be brought to the lawyer
advertising rules. The challenge was essentially that it was denying the consumers access
to information and we brought this first in the context of the Virginia Board of Pharmacy
case. Virginia, like about thirty-something other states, had statutes that prohibited
advertising of the price of prescription drugs. The statutes did not prohibit price
competition in prescription drugs, but they prohibited advertising, which was well before
the Internet and, as a practical matter, meant there was no competition. You couldn’t find
out what the price was. You could perhaps call around to every drug store in the county
and figure it out, but there was no practical way to do it.
These were all laws that were enacted by legislators principally for the benefit of the
local pharmacies. They were anticompetitive in exactly the way we saw the legal
profession’s rules being anticompetitive. I saw the lawyer advertising rules as being
anticompetitive in several respects. One is it was almost impossible to find out anything
about what lawyers were doing, what they specialized in, what they charged, anything
about them because there was no advertising permitted at all.
I remember when I was in New York—which is where I actually got the ideas to do these
First Amendment cases when I was in the U.S. attorney’s office—because I had read this
case called Kleindienst v. Mandel in which, I think I said before, the Supreme Court held
that a Belgian Communist, who wanted to come to this country to speak before groups,
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had no standing as an outsider, but that the people who wanted to hear him had standing.
That seemed to me to be, first place, completely in line with what I wanted to do which
was, I wasn’t so much concerned about lawyers getting their information out so they
could make more money, although I thought that that would happen as well. They would
generate more interest, but that consumers could have access to the information. So it
seemed to me to be the perfect combination because consumers are much more
sympathetic as clients than lawyers are in the lawyer advertising context—especially
with then-Chief Justice Warren Burger, who didn’t think much of lawyer advertising in
the end anyway. But that was further down the road.
So a group, affiliated group with ours, Citizen Action, was next door to us on P Street
where our office then was. They had done some surveys and the FTC had done a big
study about the price of prescription drugs in places where they are advertised as opposed
to where they weren’t advertised. We didn’t think we needed a whole lot of evidence as
to the competitive impact but we thought we had some anyway which was useful. We
brought a case in Virginia before a three-judge district court. Those were the days when
you challenged the constitutionality of a state statute before a three-judge district court
and we filed in Richmond. Judge Merhige, who was a very activist judge, was involved.
Judge Albert Bryan, Sr. was involved. His son, Albert Bryan, Jr., had been the judge in
Goldfarb and Albert Bryan, Sr. got assigned to the panel. We brought this case—
MR. MARCUS: He was on the Fourth Circuit?
MR. MORRISON: He was the circuit judge assigned. He was the senior judge at the time
and I don’t remember who the third judge was. It was a district judge.
We brought this case and sure enough, we won!
MR. MARCUS: But was it on price advertising or substantive advertising? Services
advertising?
MR. MORRISON: The only prohibition was on price.
MR. MARCUS: Oh, it was just on price.
MR. MORRISON: Just on price advertising.
MR. MARCUS: So it was really like Virginia Pharmacy.
MR. MORRISON: It was the Virginia Board of Pharmacy case. And we recognized—we
brought the Pharmacy case and we brought it for first for several reasons. One is there
are no pharmacists sitting on the Supreme Court. There are nine lawyers. The second
thing was there was no possibility of any confusion because they were advertising a price
which they were actually going to charge. So there was no possibility of, for example, in
the lawyers’ area saying we are charging a third. A third of what? Or routine divorce,
what’s a routine divorce? All of those kind of things. This was absolutely clear,
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objective, verifiable information. Precisely the kind and the way the Federal Trade
Commission routinely polices advertising in the rest of the marketplace. This was the
marketplace.
The third reason was that price competition was perfectly legal, you just couldn’t do it.
So they couldn’t claim that price competition would do anything.
MR. MARCUS: Can I interrupt just to ask, Alan, whether—maybe I’m a little slow this
morning, but I take it the bringing of the case challenging the ban on pharmacy
advertising of prescription drug prices was a conscious part of the broader strategy to go
after lawyer advertising?
MR. MORRISON: Yes. We independently wanted to do the pharmacy case.
MR. MARCUS: You would have done it anyway.
MR. MORRISON: Anyway. But it was clearly done as a First Amendment case and there
had been other challenges to rules about advertising, but they had all been on Fourteenth
Amendment Due Process grounds. In fact, just as we were bringing this case, the
Supreme Court had decided a case called Snyder’s Drugs v. North Dakota—said that
there were no substantive due process rights at all. I think we had that in the Complaint,
but we tossed it. It was strictly a First Amendment case.
Then we had a very interesting procedural wrinkle in this case. One of my colleagues had
been the principal lawyer. I worked, of course, with him on every case, Ray Bonner, and
we won this case and after we won the case in the District Court, the state attorney
general made a motion for reconsideration but did it way after the ten days were over.
Under Rule 59(e), the ten days are absolutely jurisdictional. We pointed this out, the
motion was denied and then they filed an appeal. So we were faced with kind of a hard
choice. We had a really good opinion that we wanted to get up. They had not made much
of a defense. The defense was that the statute was okay because they didn’t want you to
shop around because you might be taking different drugs, and the pharmacists were
supposed to help you to be sure that you didn’t take inconsistent drugs and that was
plainly both over-inclusive and under-inclusive, and there was no evidence that that was
really a reason and there were lots of better ways of doing that. And the pharmacist was
supposed to ask you and so was your doctor. These were all prescription drugs, after all.
So by this time, actually, Ray had left to go out to the West Coast and work for
Consumers Union out there. I was writing the opposition to the jurisdictional statement
and I felt that I had an obligation to the Court to tell the Court that there was what I
thought was a jurisdictional defect and still think was a jurisdictional defect. The Court
paid no attention to it whatsoever. It noted probable jurisdiction.
I’ve got to continue with the story because you need to have some other parts of the story
as we are working in with this. Our Health Group, headed by Dr. Sidney Wolfe, was very
interested in the delivery of medical services. It decided that it wanted to produce a
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directory of doctors that would have in it objective information about the doctor; where
they went to medical school, are they board-certified, how long they’ve been practicing,
do they speak languages other than English, do they take Medicare/Medicaid, what are
their basic rates, what kind of assistance do they have, what kind of backup do they have,
all kinds of objective things that we wanted to do—wanted to find out. So Sid and his
group put together a survey, and they sent it out to Prince George’s County Medical
Society and the State Medical Society. I guess it was just Prince George’s County, and
they got back a letter from the State Medical Society saying that it would be unethical for
doctors to cooperate with this because it would be advertising. We said, “Wait a second.
They’re not advertising, they’re not paying us to do anything. We’re doing it. We’re
controlling it. We have an interest in doing it.” Nope, they said you couldn’t do it.
While the Virginia Pharmacy Board case was proceeding, we brought in Maryland this
doctors case. It got hung up in all kinds of procedural mishmash and, meanwhile, the
Pharmacy case was going forward. Goldfarb is now in the Supreme Court. Meanwhile,
there is an obscure abortion case that is up in the Court. It’s a case called Bigelow v.
Virginia. This is the example I always cite about why I read U.S. Law Week.
Bigelow was a case in which the defendant, Mr. Bigelow, ran a small newspaper, I think,
in Charlottesville, Virginia. The newspaper, in 1972 or before, was advertising abortions
that were legal in New York, but illegal in Virginia. The case went to the Supreme Court
about the same time that Roe v. Wade went to the Court. It was held and after Roe, the
petition was granted, vacated and remanded for further consideration in light of Roe.
Defendant said well, Roe, this is all legal now, you can advertise. The State said, no, it
was illegal at the time and you couldn’t advertise.
The case goes back up to the Court. The Court grants cert. I see this immediately as an
opportunity for us to file an amicus brief in the Supreme Court supporting Mr. Bigelow.
His principal argument—he was represented by the ACLU in New York—was that he
was exercising his right of free press and, although it was advertising, New York Times v.
Sullivan said it was okay to advertise. This was all part of the free press. We wrote a brief
which said all that’s true, but the real interest is the interest in dissemination of
information to consumers because we had Virginia Board of Pharmacy waiting to come
up. In fact, it was going on at the time. That’s the real interest here, and information
about a lawful service cannot be suppressed consistent with the First Amendment.
MR. MARCUS: Because of the interest of consumers’ access to information?
MR. MORRISON: Yes, in this case consumers could not be denied access to truthful
information.
We filed the amicus brief in the case and the same day that Goldfarb was decided,
Bigelow came down and Justice Blackmun wrote the opinion. I think it may have been
eight to one. I think Rehnquist dissented, but I’m not positive. Anyway, it was a very
strong—at least seven to two—saying our position exactly. This is a First Amendment
case.
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Meanwhile, Virginia Board of Pharmacy had been granted. The Court noted probable
jurisdiction. The government filed its brief. We then filed our brief after Bigelow came
down saying Bigelow, Bigelow, Bigelow, Bigelow. They filed a reply brief in which they
say nothing about Bigelow at all.
MR. MARCUS: When you say the government, you mean…
MR. MORRISON: I mean, the State of Virginia.
MR. MARCUS: All right.
MR. MORRISON: The federal government was not involved.
MR. MARCUS: Although they might have been on your side.
MR. MORRISON: They weren’t. Not yet. They came in on the lawyer advertising case,
but not yet.
So the same day as Goldfarb came down, Bigelow came down. Goldfarb was a big story
because it was lawyers, antitrust and it was the Washington, D.C., area. It was a big story
all over. I said, “The Bigelow case, which was decided the same day, was a much more
important case than Goldfarb.”
Nobody paid any attention, you know? And it was. The ACLU didn’t make the
commercial speech kind of argument—that there was commercial speech. It didn’t really
come up in that context because it was litigated in a different way. Blackmun just
assumed that commercial speech applied. Virginia Board of Pharmacy was the first case
in which they actually directly confronted the commercial speech doctrine. Although it
was plainly implicated in Bigelow it was not discussed because of the way the case came
up procedurally.
I remember two things about the oral argument. The first was that Justice Blackmun said
to Tony Troy who was, I think, then the deputy attorney general, later became the
attorney general of Virginia, “What about the Bigelow case?” And he said, “Doesn’t have
anything to do with it. Nothing to do with it. That’s an abortion case.” Blackmun just sat
there and nodded his head at him.
That was one thing I remember. The second thing I remember was about my argument, in
the middle of the argument—there were two things that I was worried—two questions
that I thought I was going to get and worried about. One was about cigarette advertising.
At this time, the Congress had banned the advertising of cigarettes on television and
radio.
And in the Red Lion series of cases, that had been upheld—in Red Lion, saying that the
Congress had special authority over interstate commerce and the airwaves. Then another
case came up afterwards, they had specifically upheld the cigarette ban.
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MR. MARCUS: Well I think there was never a Supreme Court opinion. They affirmed—
MR. MORRISON: Affirmed a three-judge court, that’s correct. So the first I was worried
about was cigarettes and the question was, “If we uphold this, what is this going to do to
the ban on cigarettes?” I was prepared to say you would have to make the same kind of
analysis we would have here and that there was at least an argument that it would be
unconstitutional. You would certainly have to consider the First Amendment implications
and I wasn’t prepared to say what the answer was, but I was certainly ready for that. I
didn’t get that question. That came up years later in other contexts.
The second question was, was this going to apply to lawyer advertising? And I was
absolutely prepared for the answer to that question which was, “The same analysis would
apply. The First Amendment would apply. The Court would have to look at the
justifications given for the particular rules being challenged and, to the extent that the
rules were the same as these rules here, the answer would be the same.” I was prepared to
say that.
I didn’t get that question. I got a different question from Justice White. He said to me,
“Well, Mr. Morrison, I suppose your next case is going to involve lawyer advertising.”
The courtroom broke out into laughter. And completely uncharacteristically for Justice
White, he said, “That’s okay. You don’t have to answer that question.” Because he
thought he knew what the answer was. When he asked me the question that way, I was
prepared to answer the question, “No, Justice White, our next case involves doctors,”
which was true and we had actually disclosed that at one point in our papers.
MR. MARCUS: Your Prince George’s County case.
MR. MORRISON: Yes. Our next case involves doctors. But he made his point and
everybody understood the point that the lawyers case was going to come up next.
MR. MARCUS: And that’s why there was a footnote in the Supreme Court’s decision in
Virginia Board of Pharmacy. I shouldn’t get ahead of your story.
MR. MORRISON: Yes, well anyway, we won the case. Justice Blackmun writes his
opinion, says Bigelow, Bigelow, Bigelow and lots of other things—this is a silly rule and
everything like that, and I think maybe Rehnquist dissented in that one, too. I don’t
remember for sure.
MR. MARCUS: Yes, I think so.
MR. MORRISON: I’m pretty sure he did. He dissented a lot—much more when he was
an Associate Justice and many more concurring opinions than when he was the Chief. So
it was a great day and we knew this—a lawyer advertising case—was going to happen.
We were perfectly prepared to have the doctors cases and there was another doctors
directory case that was being brought. There was a lawyers directory case brought by
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Consumers Union in Virginia. We thought those were better vehicles. Meanwhile, out in
Arizona, Bates and O’Steen started advertising. They got slammed and they took their
case to the Supreme Court. The Supreme Court agreed to hear that case. Actually, I think
the State Bar lost that case—I think it was the State Bar against Bates and O’Steen. In
any event, right on the heels of this, that case went to the Supreme Court and we had
hoped for a little more time and reprieve, but it didn’t happen that way.
We filed an amicus brief in the case as well as others. This time the solicitor general
came in because Bates had claimed both an antitrust violation and a First Amendment
violation and so the government came in and Dan Friedman came in and argued for the
federal government and a lawyer in Arizona named Bill Canby, who later became a judge
on the Ninth Circuit, argued and we did a moot court for him, much to his appreciation, I
think. The case was argued and I learned a really interesting lesson from that case. The
government came in and said no antitrust violation because of Parker- Brown. The state
was regulating the advertising, the State Supreme Court had issued these rules and after
Goldfarb, that was clearly right and it was clearly right before Goldfarb. The antitrust
laws are not designed to get at state court ethical rules. But they came in and they said the
First Amendment applied. They said Virginia Board of Pharmacy and it was
anticompetitive. Dan Friedman, whom I’d seen argue many times and then saw in the
Federal Circuit, was a wonderful advocate. But I must say he was quite uncomfortable
arguing the pro-First Amendment side.
Because he’s always—representing the federal government, he’s almost always against
the First Amendment. Not against it, but for a narrow interpretation.
It reminded me that sometimes having the best possible advocate, if he or she doesn’t
have their heart in it—
It was awkward. I remember seeing a similar thing—the football players hired Ken Starr
after he left the solicitor general’s office to argue on behalf of the players against the
league and Ken did an okay job, but I didn’t feel he had his heart in it the way he would
have had if he’d been arguing the other side.
Somebody thought, “We ought to get the solicitor general, he knows all this stuff.” There
is something to be said for having the person with the passion on it.
Anyway, five to four, the opinion, again written by Blackmun, saying the state can’t bar
all lawyer advertising and that these were not narrowly-tailored, objective
restrictions—the ones that they wanted to have—legal clinic, fixed fees and hours. Chief
Justice Burger wrote in a passionate dissent saying, “It was the beginning of the end of
the Universe,” and, “The Bar will never be the same again.” Of course, it wasn’t the same
again. It was actually better. Some things worse, but overall, better. I’ve often been
asked, “What do you think about all this now?” And I say, “Look—I have two reactions.
Do I like some of these ads I see on television? No. Do I think they are harmful? No. Do
I think many people are offended? Sure. But there are people who pay attention to them
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we know because people are spending real money for these ads and they wouldn’t do it
without it.”
MR. MARCUS: People are getting legal services.
MR. MORRISON: And most importantly, they are able to get legal services that they
need—
MR. MARCUS: At a reasonable price, maybe.
MR. MORRISON: And this is one of those cases where if the Bar had gone and done a
lawyers directory with the kind of information that we wanted to do with the doctors
directory and the Bar had done a service and controlled for all of this, the result might
have been different. In the first place, people probably wouldn’t have brought these
lawsuits. In Bates and O’Steen, the lawyers were on the defensive there. That is, they got
sued and they were subject to potential disciplinary proceedings. So they stuck their
necks out. In the Virginia Board of Pharmacy case, we were a consumer group; they
couldn’t do anything to us. We had low risk. There was no risk at all. It’s easy to be a
plaintiff in that kind of a case. It is quite difficult to stick your neck out, with the lawyers.
So that became the beginning of the changes in the lawyer advertising rules.
Two other things had been going on during this time as well. One, the ABA and the State
Bars were getting concerned about prepaid legal services—in particular, group legal
services, that is the ones that were referred to as “closed panel plans,” which were the
legal equivalent of HMOs. The reason that these were initially popular was because they
did what HMOs did, except that they were consumer-driven as opposed to insurancecompany-driven. They were often set up by labor unions and they effectively drove down
the price of legal services by making it affordable, and it was a form of insurance. When
I first heard about this, because it was part of our work on the legal profession, I went to
work with a group whose principal purpose was to get these plans out and get more
known about them and to remove barriers. There were two significant barriers that we
worked to remove, and I worked with a group on it. And, under the Taft-Hartley Act,
jointly negotiated labor management plans have only limited subjects of collective
bargaining and medical plans were included but legal services plans were not, so we got
Congress to change that.
Second, there were two problems with these plans from a tax perspective. One was that
the people who wanted these plans wanted to make the contributions to them excluded
from income, like medical insurance plans, which made them more attractive and
cheaper in terms of benefits both for the employee and for the employer. The second and
bigger problem was that in all likelihood the payments for legal services would be treated
as income to the plan beneficiary so that you would have to pay tax on the payment with
no money to pay for it. That was also true with the medical plans and they had fixed that
for the medical plans. Those were very important things and we got a cooperative
Congress to fix those in the early 1970s as a prelude to doing this.
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Meanwhile, the ABA—was dominated in this regard by the General Practice section, and
they were very much against it because they saw it, just as doctors saw prepaid medical,
and HMOs, the lawyers saw this as potentially cutting into their business which it
probably would have if they’d really gotten off the ground. To some extent they did get
off the ground. The ABA had some rules, the effect of which was to—they did it this
way: lawyers were forbidden from cooperating with plans that advertised the availability
of group legal services and so while the Bar couldn’t regulate the plans because they
were not lawyers, they could say that it would be unethical for lawyers to cooperate with
them. At that time, the ABA Rules were adopted either automatically or virtually
automatically by most states in the Union.
Well these ethics rules that the ABA promulgated were seriously anticompetitive because
they essentially said that lawyers couldn’t cooperate with these plans and the plans
couldn’t get off the ground without lawyers.
MR. MARCUS: What was the ethical violation?
MR. MORRISON: Advertising.
MR. MARCUS: Advertising?
MR. MORRISON: Because they were—the plan was, theoretically, advertising. Not on
behalf of the lawyers, but on behalf of the plan.
MR. MARCUS: Was there also an element of control of lawyers by non-lawyers, I
vaguely remember, with some of this stuff?
MR. MORRISON: Yes, but those sort of things were taken care of. Everybody agreed
that they couldn’t control the lawyers’ handling of individual cases. The question is could
they do this?
We brought an antitrust case against the ABA about this time—this was in the mid70s—it was the Pre-Law Society of Middle Tennessee State University v. American Bar
Association. They ended up backing off and they ended up changing their rules. We
never did get it litigated. They said, well we’re only advisory, so we had to make it clear
that they couldn’t do it. About this time, the second thing that happened was State Bars
started taking a look at the ethics rules more seriously and so the ABA’s model rules
were not automatically adopted, so that helped as well.
In any event, I think it was the FTC or maybe the Antitrust Division were also making
noises about these things being anticompetitive. We were reasonably successful both on
the legislative side and also on the litigation side. For a while these prepaid legal services
plans got going and they have become more common but they have never become like
medical plans and the principal reason was that starting in the late 1970s, labor unions,
who were the principal proponents, went into a decline and they lost their bargaining
position and members became more concerned about not losing wages and getting wage
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increases in times of inflation. It just became less of a priority. As labor unions,
particularly in the industrial sector, became less powerful, the movement never really
moved ahead. I don’t have the latest data on it, but it’s not anywhere near what anybody
thought it would be, probably for market reasons as much as anything else. There are
some private plans. I think at one time some of the credit card companies had them. They
were not, strictly speaking, the prepaid and closed panel plans, they were advice plans
and discounted services and you could get lawyers if you were driving and got in a traffic
matter in some other part of the country. They were useful but the movement never took
off. In any event, we saw our job as eliminating the barriers, and we had eliminated the
barriers. There is currently in the code nothing that in any way stands in the way of
prepaid legal services.
The other related antitrust prong that we had going was during the time that I was
litigating Goldfarb, I came to understand the process of buying and selling houses in
Virginia. The reason that A. Burke Hertz and the rest were able to charge so much money
for it was that there was an ethics opinion of the Virginia Bar which said that the
examination of the title to real estate was a matter that only lawyers could do because
they were stating a legal opinion as to the state of title and that, therefore, title examiners
and title insurance companies could not do that on their own. They had to have a lawyer
examine the title, and it would be unethical for lawyers to assist in any way in a house
closing in which the title examination was done by a non-lawyer.
MR. MARCUS: And the theory was that the non-lawyer was engaged in the
unauthorized practice of law.
MR. MORRISON: Unauthorized practice of law, yes. There was a company in Virginia
called Surety Title that was trying to do title examinations without lawyers and the Bar
started making noises and they came to me and so we brought an antitrust action against
them.
During the course of this we discovered that there had been several impassioned
meetings at which the Bar debated and issued these ethics opinions and it was a hundred
percent clear from these that the sole motive was economics. Some guy got up and said,
“If we let them do this, they’ll be taking bread out of our mouths.” Somebody else said,
“What do you expect to do? We’ll turn into a bunch of Legal Aid lawyers.”
We brought this case—it was not the world’s most sympathetic client. They were doing
some stuff that didn’t look so great. We ended up not winning—we lost the case, cert.
was denied, Justice White dissented. But in the meantime, the Virginia Bar got wise—it
may have been while the case was pending, I can’t remember for sure; they proposed a
new rule—actually it probably came from the Supreme Court. It had to come from the
Supreme Court.
MR. MARCUS: The Virginia Supreme Court.
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MR. MORRISON: The Virginia Supreme Court changed the rules on opinions on what
constitutes the unauthorized practice of law. In the past, the State Bar could issue them
without any approval by the Supreme Court of Virginia. They changed it so that the Bar
could issue opinions saying that something was not the unauthorized practice of law and
hence could be done, i.e., pro-competitive without the Supreme Court of Virginia, but if
they had to do it the other way around and said it was a violation, they had to go to the
Virginia Supreme Court, which was perfectly fine. A perfectly sensible rule. That is,
there was no anticompetitive problem in saying that you could have more competition.
MR. MARCUS: That was your quasi-victory.
MR. MORRISON: Yeah. Well, it was clear that the case would never have been
victorious without that. The FTC, as I recall, did some further things about that, but I
don’t recall seeing any other instances of State Bars issuing unauthorized practice of law
opinions.
I have two or three other areas I want to talk about. One is unauthorized practice of law,
and I want to talk about residence and other requirements for Bar admissions, and then
policing attorneys’ fees, principally in the plaintiffs’ bar.
MR. MARCUS: Let’s—why don’t we do unauthorized practice of law.
MR. MORRISON: Yes, I just want to give you a preview. I was sitting in my office one
day in about 1977 and I get a letter from Rosemary Furman of Jacksonville, Florida, and
it says, “Re: Help.” I always read my mail because there were all sorts of good things
showing up in it. Rosemary Furman was a paralegal. She had been a legal secretary in
Jacksonville, Florida, and she ran an independent service in which she was helping
people who could not do the work themselves to prepare simple legal papers: divorce,
adoption, name change, and other things. The State Bar of Florida was very unhappy.
The State Bar of Florida, fast forward, has, even today, the most extensive effort to police
the unauthorized practice of law of any state in the Union. They have a budget in excess
of $1 million that they spend, by their own admission. No other state has virtually any
enforcement mechanism. Many other states are principally concerned with people who
are misrepresenting themselves as lawyers, people who are unlicensed in the state but
licensed someplace else or have been disbarred and are practicing. We never had any
problem with those. The problem we had was this. And the State Bar of Florida came
after Rosemary Furman and they brought a proceeding against her. She had heard about
my work and she wanted me to come down and represent her. The first thing she wanted
me to do was to bring an action in the federal court on antitrust grounds to enjoin the
enforcement. She was smart. She really knew what she was doing.
MR. MARCUS: Their enforcement action was before a state agency or in an injunction
action in state court or what? Do you remember?
MR. MORRISON: Yes. The Bar has to seek an Order to Show Cause from the State
Supreme Court.
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MR. MARCUS: I see.
MR. MORRISON: The State Supreme Court issues an Order to Show Cause and they set
the matter down for hearing before a circuit court judge in the county in which the
unauthorized practice was alleged to have taken place. The State Bar has lawyers—they
actually hire lawyers—or hire, they probably don’t pay them. They don’t pay them. They
get lawyers in a firm there to prosecute the case on behalf of the State Bar. The remedies
they were seeking were injunction and contempt of court.
There were lots of reasons why Rosemary was singled out, although they were going
after other people at the same time as well. The first reason was that she was charging
$50 for things that lawyers were charging $450 for. The second thing was that she hated
lawyers generally and the organized Bar, in particular. She would denounce them as
“scum” and “thieves” and everything else. She was very strong and very good on
television and the Bar was going crazy. They just couldn’t abide this. So she got me to
come down. I wrote her back and I said to her, the case has already started, under
Supreme Court precedent, you can’t get an injunction against them. It’s not a violation of
the antitrust laws to begin with and, therefore, I declined to do it. I think actually they
were threatening to do this. They hadn’t done it yet. Well, maybe they had done it.
Anyway, the point was I said I was not going to do that case because it would have been
futile. I said if you want me to represent you in the state court proceeding, I’ll do it, but I
have to get local counsel. So I got local counsel, a guy who she had helped out with some
things. He was basically a criminal defense lawyer. A lovely guy whom we’ve kept up
with for many years, named Bill Sheppard. He helped out in this case. I went down there
and I defended her.
The judge was extremely unfriendly; he issued an order saying, no, you can’t do this.
This is the practice of law. She kept saying, “Well what is the definition of the practice of
law?” Of course, nobody was going to give her a definition. She was typing up papers, so
therefore she was doing legal pleadings and she was telling people what to do, therefore
she was giving advice. She was not going to court, but she was doing everything short of
it. Although a lot of the stuff focused on the divorce papers, she was doing other things as
well. It turned out that the Bar had trouble getting her clients—people who would be
witnesses for her because all the people she served loved her. She was doing things—she
knew what to do.
MR. MARCUS: She did good work.
MR. MORRISON: It was very good work. In fact, she did better work than a lot of
lawyers who didn’t know all the details, because she really did know everything about
what she was doing. If she made a mistake, she didn’t charge anybody anymore. She was
also very active in the local women’s center and she did a lot of work for battered women
who were tossed out of their houses and left with children. I think that the judges could
figure out which papers she typed because her typewriter had a distinct style and the
people would come in pro se and they would ask—the judges would sometimes ask
them, “Did you type these papers?” and they said, “No, Furman.” They said, “No, I got it
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done at the Northside Secretarial Service.” At one point she had a couple women who
were helping her out, but she was very good.
So we lost the case in the court and we took an appeal. Meanwhile, another case had
come along in which we had nothing to do with, didn’t even know it was going
on—Marilyn Brumbaugh. Florida Supreme Court, same kind of situation—divorce
preparation—and they said, “Well we realize that typing the papers is okay. That’s okay.
But, that’s all the person can do. Anything else is the unauthorized practice of law.” We
said, “That can’t be right. These people are all people who can’t read and write. They
don’t know any legal proceedings. They can’t fill out the forms. If they could fill out the
forms, they could do them themselves; there is no requirement that these papers have to
be typed. This is, in effect, virtually nothing.” It was illegal for the clerks of the court to
tell people how to fill out the forms because that would be giving legal advice also. We
said it was a completely unworkable situation. We threw in for good measure, this also
violates substantive due process and equal protection because, for many people who want
a divorce, they cannot afford a divorce and if they cannot afford a divorce, the State
maintains a monopoly over the divorce. Therefore, they cannot be divorced and under
Boddie v. Connecticut—the Supreme Court had held that a $50 filing fee for a divorce is
a violation of due process and equal protection for those who can’t afford the filing fee.
But this was divorce and we said this is the same kind of barrier. These people have no
ability to pay it. Unfortunately, the way the case was structured, we didn’t really have the
evidence as to particular plaintiffs who were adversely affected and for whom there was
no other remedy, no Legal Aid, no pro bono lawyers, no nothing. We didn’t have any of
those plaintiffs, in part because we were on the defensive and the charges were with
respect to people who, while middle class, they were not completely poor. So the issue
was presented. The Florida Supreme Court didn’t pay any attention to it, nor did they pay
attention to our plea to narrow Brumbaugh (or broaden it, depending on which way you
look at it) to make it more workable. They said Brumbaugh is the law and that’s it. We
filed a cert. petition and cert. was denied—not very surprisingly because we didn’t have
much in the way of a record. So she had this injunction against her. They hadn’t held her
in contempt and she purported to follow Brumbaugh, but she couldn’t do it. She couldn’t
do it because it didn’t work and because in her heart she knew it was wrong. She couldn’t
help these people. Sure enough, the Bar caught up with her. This time they brought a
criminal contempt against her.
The criminal contempt could have put her in jail for an indefinite period of time, so we
made a motion for a jury trial. That was denied. We tried this case before another
unfriendly judge. This one was on television. It was my first experience with television.
None of the witnesses for the other side had any complaints about her at all. The only
problem they had was that the judges were hostile to the papers because Rosemary had
done them. Well, big surprise. So if we had gotten a jury trial, we might have been able
to do something. We didn’t get a jury trial and the judge recommended the sentence of
five months in prison.
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She got scared. We went to the Florida Supreme Court, raised the jury trial issue, the
argument about Brumbaugh, constitutional rights. They didn’t pay any attention. We
went to the Supreme Court and we got a stay from Justice Powell, but then cert. was
denied. The only issue we took up was the jury trial issue. So Rosemary at this point was
about to go to jail. Meanwhile, we had decided that about the time they went after
Rosemary for the criminal contempt that we had to go on the offensive. So we took the
Boddie case and put it in an offensive posture. We found, through Rosemary, a woman,
poor, black, on welfare, with three children. Her husband had left her. She just wanted to
get a divorce and get rid of him. Legal Aid at the time was taking only cases in which
there was current abuse because they simply didn’t have enough people to take more.
Their budget had been seriously cut. We brought a class action on behalf of Serena Dunn
against the Florida Bar and the Florida Supreme Court saying that, as applied to divorces,
adoptions and name changes, over which the state maintained a monopoly, this was a
violation of their due process and equal protection rights to prohibit the Rosemary
Furmans of the world from providing advice and assistance and, at the same time, not
have any pro bono services or anything else to do it. You could change—there are lots of
things you could do. The one thing you can’t do is to keep denying these people access to
legal services.
MR. MARCUS: You brought this in federal court?
MR. MORRISON: Federal court. They made motions to dismiss and that was denied. We
made a motion for class certification, a (b)(2) injunctive class. I had our client in court
that day. I was getting—I had made my part of the argument and the lawyer for the other
side was arguing about why we shouldn’t get class certification. The judge said, “Would
counsel please approach the bench?” So I go up to the bench and the judge says to me,
“Mr. Morrison, please don’t look around, but would you tell me is your client in the
courtroom today?” I said, “Yes she is, your Honor.” He said, “Well, you know, she has
been sleeping through the entire proceeding.” I said, “Yes, Your Honor, on the way over
she told me that she had been up the night before with her small children and she’s very
tired and it was very difficult to get her to come today.” He said, “All right. I appreciate
that,” and he said, “I wonder,” he said, “Do you think it’s possible you could get an
additional class representative?” He said, “Being class representative is not a particularly
onerous requirement, but there are some sort of minimal standards.” I said to him, “I
think we could do that, Judge.” And, sure enough, we did so. Judge Howell Melton was
perfectly prepared to do this.
We took a bunch of discovery and they made a motion for summary judgment. It was
denied. All set to go to trial and we were literally on the eve of trial and the State Bar
with the State Supreme Court issued a bunch of new rules which promulgated a series of
forms that were useful. They loosened up on what the clerks could do. While it wasn’t
anywhere near what we wanted and while Rosemary still would have had trouble
complying, it was impossible to go to trial on this basis. So we declared victory. We then
sought attorneys’ fees. The judge who was assigned to the case, who had been very
sympathetic to us and, I’m sure would have given us attorneys’ fees, but, for reasons that
I never understood, except he had a backlog, stepped aside and a visiting judge who
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knew nothing about the case, from Missouri, came down and he handled the fee
application. He said we weren’t entitled to fees because we did not state a claim to begin
with even though the trial judge had said twice we were upheld. We went to the Fifth
Circuit and they declined to overrule. We got no fees for having done a really lot of
work. It was very, very, frustrating. Meanwhile, the State Bar rules on unauthorized
practice got a little better and they’ve gotten better in the meantime and there has been a
little less enforcement.
I know this is still going on because there is another paralegal who has written to me
from time to time asking me to help her out, and I’ve just said there is not much I can do.
It is a terrible, terrible area, the unauthorized practice of law. It is the area which I felt
that I had the least success in litigation. These were all state court claims, state court. We
were never able to get the Boddie case back into court again in any other situation
because Florida was really the only place that was really tough on this.
MR. MARCUS: I think in other places there have been some more reforms, like
California.
MR. MORRISON: Or if they are not formal reforms, they just sort of leave them alone,
let them be. Nobody says that it is legal, but nobody comes after them and the lawyers
are not complaining.
MR. MARCUS: I think the Internet has made some de facto changes, too, with people
putting out these forms.
MR. MORRISON: Yes, well, the form books. You can’t stop that and not only that, but
computer programs, too.
MR. MARCUS: What happened to Rosemary? Did she have to go to jail?
MR. MORRISON: No. She didn’t go to jail. We—in Florida the governor has a right to
clemency. I got down on my hands and knees, not quite literally, pleaded with the
governor.
MR. MARCUS: Who was the governor? Do you remember?
MR. MORRISON: Graham, I think was the name.
MR. MARCUS: Oh, Bob Graham, yeah.
MR. MORRISON: This was in the early ‘80s and I said she has agreed to close her
business and she’s going to move out-of-state. They said if she closes her business within
thirty days, we will withdraw the judgment of guilty. She really did not want to go to jail.
She was a woman probably in her mid-fifties at the time and the notion of spending six
months in jail—maybe it was only four months in jail—was just more than she could
tolerate, and rightly so. There were a lot of people unhappy and the governor did the
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politically right thing when we made the offer to do that. I didn’t think she would get
clemency because the Bar painted her as having willfully violated the rule, and in one
sense she did.
MR. MARCUS: But she couldn’t help it.
MR. MORRISON: She couldn’t help it. She was doing what she thought was the right
thing to do and she was—at one point she was on 60 Minutes with this and she was all
over the papers all over the country and the Bar just got a terrible black eye as a result of
all of this. People today still remember, oh, the lawyers and Rosemary. In fact, she died a
few years ago. I had lost touch with her—I thought she was still in upstate New York
where I’d been in touch with her. She was not there. She had moved back to Florida. I
think she had some family there and she passed away a couple years ago. A lawyer,
whom she had helped out, named Eddie Farah, had become quite prosperous doing
personal injury cases, and he commissioned somebody to put together a film about her. It
was a documentary. It’s a really lovely thing and they had it at the Legal Aid Society, and
somebody who was from the Florida Bar was supposed to come at the time to sort of let
bygones be bygones, but they cancelled and they didn’t show up. I went down there and
gave a talk on her behalf.
MR. MARCUS: That’s nice.
MR. MORRISON: It was a nice thing to do.
The unauthorized practice issue continued to bedevil me and we had one other context in
which we tried and didn’t much succeed and that was bankruptcy. Bankruptcy is another
area where we really could have done something important. The bankruptcy cases were
situations in which the bankruptcy rules, or at least the customs, essentially required that
lawyers fill out the petitions for individuals. We’re not talking about corporate
reorganizations, we’re talking about individual bankruptcies, either the equivalent of a
reorganization or a straight bankruptcy. Lawyers were being used to fill out papers, and
there were real barriers. The bankruptcy judges, the U.S. Trustees, nobody seemed to
understand that this was a bad idea. The thing that was most frustrating is that the credit
card companies didn’t understand that this was money being siphoned away from them.
Because the lawyers got paid first as expenses of the administration, so they spent $500
off the top when somebody could have done it for $150 and that would have been $350
more for creditors. Never could get any traction on it, and I probably didn’t work as hard
on it as I might have. But every time I tried with the rules people or other people, nobody
seemed interested enough to do anything about it. That was another area where
unauthorized practice was bad.
Third area, immigration. That’s sort of been one that has developed over the years that
there are people helping other people fill out immigration forms now. We had one case in
North Carolina where a group was doing that and the North Carolina Bar threatened
them. They came to us and we wrote a letter saying, “This is a federal agency and the
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state courts have no authority to regulate that.” There was a case involving the Patent
Office out of Florida many years ago in which it said that was preempted.
The federal agencies were perfectly happy to have whoever was doing the immigration
stuff do it, and they backed off. We never had to bring a lawsuit about it. Interestingly,
the best agency for unauthorized practice, and the model, is the Internal Revenue Service.
The Internal Revenue Service has a series of gradations—if you are a lawyer you can do
everything; if you are an accountant you can do other things, but an accountant can also
pass the exam and represent people in the Tax Court. They have tax preparers and other
people who get various statuses, depending upon what they can show. Our argument
always was the way to deal with an unauthorized practice is not to say it is either lawyers
or lay people, it is to have limited licenses for different people to do different kinds of
things. Most of them do not want to be general practitioners.
MR. MARCUS: They don’t want to litigate cases, right.
MR. MORRISON: No, no. Although in some cases they may want to. The other thing
that always drove me crazy was the rules that mom & pop grocery store corporations had
to have an outside lawyer. They couldn’t represent themselves even in bankruptcy, even
though probably a lawyer had incorporated them and not bothered to tell them that, by
the way, every time you want to do something from now on, you have to have a lawyer.
That always annoyed me enormously.
MR. MARCUS: What do you think is the reason for the difficulty in this area? Is it the
problem that courts worry about the slippery slope and the difficulty of drawing lines
between what you really need a lawyer for and what you don’t?
MR. MORRISON: I think there are two sets of reasons. One is that there is no obviously
applicable federal handle and, therefore, just as there wouldn’t have been—if you didn’t
have a federal handle over advertising or minimum fee schedules, you wouldn’t have
got—
MR. MARCUS: Like the First Amendment, right?
MR. MORRISON: Yes. Well, somebody said to me, “Well it was a First Amendment
violation.” Rosemary would say to me, “All I’m doing is speaking.” I said, “I understand
you’re saying that, Rosemary, but nobody’s going to—you’re practicing law. Maybe
they’ll get you because you took money.”
Of course, I always used to say when I teach this stuff, I would say, “Does it matter that
the people are taking money?” The answer is yes and no. It matters because it shows you
what’s going on but, no it doesn’t because if the purpose is to protect the individual from
bad advice, it shouldn’t make any difference whether they are paying for it or not.
Viscerally, of course, it always seemed to matter. Rosemary would have done these
things for nothing.
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So that’s the first set of reasons. The reason on the other side is that there are the twin
perils of protectionism and paternalism. There is a protectionist aspect to it. Some—even
though people say they can’t afford it, if they really, really, really want it, they’ll scrape
the money together and they’ll be able to pay the lawyers. Second, there is this
paternalistic attitude that lawyers—we lawyers know what is good for you and you really
do need (as I used to put it) to drive a Cadillac even though you can get there on your
bicycle. And that’s the big issue. You have to go first class.
MR. MARCUS: Do you think the increased availability of free legal services for really
poor people, even though it’s inadequate, played a role in the attitudes of courts?
MR. MORRISON: Probably not very much because there is—in these situations, most of
the people couldn’t afford it—or couldn’t get it. And of course, we’ve cut back so much
on free legal services in recent years, that you couldn’t get it. The other thing that was
always odd was that they’d say, “Well, it’s perfectly all right. You can come in and be
pro se. But we can’t have these outsiders coming in and messing up our court system.” I
always would say, “Look, Rosemary Furman doesn’t mess up your court system. She
makes it more efficient. She does it properly.”
MR. MARCUS: You don’t want these people pro se.
MR. MORRISON: You don’t want these pro se, yes. The judges just didn’t like it and so
we never could make much progress. And there were no clear lines to be drawn as a
matter of law. We’ve had to make movement as a matter of policy and they’ve
recognized that, yeah, it’s better to have a lawyer in some cases, but if you can’t afford a
lawyer it’s better to have somebody than nobody—or having yourself do it. In some
cases it’s literally impossible. People can’t read and write and they certainly can’t
understand these forms or figure out what to do. We would say to them, “Is giving legal
advice telling them which courthouse they have to file in, how many copies they have to
file, how many days they have to do it? Is that legal advice?” The answer was, “Yes, yes.
You are applying the facts to the law.” That always seemed to me completely
unsatisfactory. And then what we had to worry about was, are there situations in which
we want people to have a lawyer because we are too concerned about the quality of it.
Just like medicine. Perfectly prepared to have people give you free advice about whether
you should take cold medicine or take chicken soup and go to bed, but not to do surgery.
So we were disappointed with that. Meanwhile, while this was going on, the lawyer
advertising continued on for a number of years. Indeed, my old office has got a case now
involving New York State—it’s still going on today.
MR. MARCUS: I’m sure that’s an area where a lot of progress has been made.
MR. MORRISON: Yes, yes. One of the first things—the year after Bates was decided,
Bates and O’Steen was decided—two cases came up quite accidentally—cases which we
never would have wanted to have brought up then—either one of them. Certainly the
second one. One was from South Carolina and a lawyer affiliated with the ACLU there
had been asked to go to a meeting at which she discussed the state’s threats to
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involuntarily sterilize women who were on welfare. She talked to the women about it and
then subsequently made a written offer to represent women pro bono in their suits against
the state for insisting upon, I think it was sterilization, but I’m not sure. I’ve forgotten the
details. In any event, it was some clear civil liberties kind of issue against the state—for
nothing. And the South Carolina Bar said she had engaged in solicitation. That case was
extremely favorable. The facts could not have been better. It was a nonprofit
organization, no funds, and so forth. Clearly a major public policy issue.
The other case involved a lawyer named Ohralik from Ohio. Mr. Ohralik was a bad guy.
Mr. Ohralik found out that a young woman had been in an automobile accident and she
was riding in a car with another woman who was driving it. The woman that Ohralik
wanted to represent was very badly injured, she was in the hospital. The driver of the car
was not badly injured. Ohralik went to the hospital, found out about it and solicited her in
the hospital while she was in her bed of pain. She was probably on drugs at the time. He
tape recorded the solicitation so he would have proof that she had said yes. Even when
she later changed her mind, he said it’s a binding contract. He was going to sue the other
woman who was the driver even though they had an insurance policy that was perfectly
prepared to pay up and he was taking a third. He was the worst of the worst. They got
him on a solicitation charge that was under a rule that was extraordinarily broad. That is,
it prevented any solicitation of any kind whatsoever. These two cases were granted at the
same time and they were argued the very next term after Bates. We had to figure out
what to do.
We filed an amicus brief in which we said that the rules were over broad and that a
narrowly tailored rule surely would have been permissible to get Mr. Ohralik, but that in
any event, Ms. Smith—she was originally Smith and then it was—she changed, she got
married and it was Primus. I’ll never forget—the briefs were filed under Smith and the
case was decided under Primus.
During the oral argument, which did not go well for Mr. Ohralik, the Ohio state lawyer
was there and Justice Marshall said to him—he was talking about hovering over her in
the hospital and Marshall said to him, “And where was the insurance company at this
time?” You know how he could go. He said, “Well, there was no evidence that the
insurance companies…well I know what’s going on in these cases.” The Court
unanimously said they could discipline Mr. Ohralik for it. They said clearly in these kind
of circumstances they could discipline him.
I believe Justice Powell wrote both opinions, but he said in Primus, she was exercising
her First Amendment rights at a nonprofit organization under NAACP v. Button and other
kinds of cases; she was privileged to do that and she was protected by the First
Amendment in doing this. So that immediately gave us at Public Citizen, of course, an
endorsement to engage in all this solicitation which we were sort of engaging in anyway,
but we felt fully protected after that. There was an argument made that she might get
attorneys’ fees and nobody thought that that was a particular problem because it was
going to come from the defendant and it was not going to come from clients. So Primus
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turned out to be a very important solicitation case on that side. Ohralik was in the other
direction.
MR. MARCUS: I don’t think Ohralik really hurt the development of the law in this area.
MR. MORRISON: No, no. It just meant that they didn’t have to conform their rules to a
narrow tailoring. They could have broad rules. It turns out that a lot of the rules were
narrowly tailored anyway.
Anyway, so then there were written solicitation cases, some of which we were involved
in in one way or another. That was held to be all right—that written solicitations, even
though they went to specific people, those were held to be all right. The Court has sort of
gone through a back and forth, much more stringent rules about television than about
other things.
MR. MARCUS: In-person solicitation. They still allow some bans on classic ambulance
chasing.
MR. MORRISON: Thirty days. Florida has a rule, thirty days. That was upheld.
MR. MARCUS: That has a funny name, that case. I can’t remember it.
MR. MORRISON: Went For It.
MR. MARCUS: Went For It, yes. Another unfortunate name.
MR. MORRISON: Quite so. We had a case involving in-person solicitation by
accountants and we won that case. Dave Vladeck won that case in the Supreme Court.
We said, “Look, the line is not between in-person solicitation and other solicitation. The
question is, in general, the nature of the solicitation and how intrusive it was.” There
continue to be efforts every once in a while—as I said, New York State had some rules
about they didn’t like certain things in their advertisements. Committees in the Bar and in
New York State, I think the judges are obsessed with this thing. People don’t like to see
these advertisements and they think we’ve got to do something about it.
MR. MARCUS: I think it is still the same kind of thing. I think what keeps the opposition
going is the same kind of obsession that Burger had—that it’s going to destroy the
dignity and reputation of the profession.
MR. MORRISON: Of the people who don’t advertise.
MR. MARCUS: It’s the bad guys are going to drag down our reputation.
MR. MORRISON: Yeah. Now, of course, everybody advertises.
MR. MARCUS: Oh, the big firms advertise now, yeah.
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MR. MORRISON: One of the things with the New York State rule is it might have shut
down their Web sites, so the big firms in New York State—that’s clearly advertising. We
do this, we do that. This is a list of our clients and all sorts of other stuff.
I remember sitting a couple years ago, being in the San Jose airport and seeing this
enormous poster as I was standing in the security line, which is a very good place to have
advertisements, for a big patent firm. I think it was Fish & Neave, standing right there in
front of me. I said to myself, “This couldn’t have happened.” And when I tell my
students when I teach Ethics that there was a time when lawyer advertising was
forbidden, they look like I was from the Stone Age. Of course it was the Stone Age.
MR. MARCUS: It was completely forbidden, that’s right.
MR. MORRISON: We also understood that solicitation was always done. It was just
done at the clubs and at social events and it was perfectly all right to do it as long as the
right people did it. Those people didn’t do it. That was clear hypocrisy and everybody
understood it.
Lawyer advertising has changed radically and, of course, with it has come a whole set of
commercial speech doctrines including I’ve said, say a big push to help tobacco being
able to advertise and disseminate information in ways that seems to me to be unnecessary
and inappropriate. That’s the price you pay for setting a precedent in this area.
Let’s go to the next topic. This is residence requirements for bar admission. This idea
came to me when I was taking the bar exam in New York. It turned out that you had to be
a resident of New York State to take the exam. I also knew that lots of the partners lived
in New Jersey and Connecticut. Then I subsequently learned that you could leave the
state almost immediately. Most people didn’t, but you certainly could leave the state
almost immediately. I instinctively understood, even before I went to work for Ralph,
that this was another anticompetitive practice. The reason that was there is because the
Bar didn’t want people poaching in on their practice. These were rules that were
promulgated by the state courts, so we couldn’t use antitrust against them, although they
were plainly anticompetitive. There was no First Amendment problem. Before we got
into this there had been a bunch of durational residence requirement cases originally
arising out of welfare payments. But durational residence requirement cases for Bar
admissions, where you had to come and live in—North Carolina was one that was a
case—and other cases for six months or a year before you were eligible to take the bar
exam. Meanwhile, you’re a lawyer, you can’t be employed. What are you going to do?
Maybe some places would employ you, but lots of places wouldn’t. Those durational
residence requirements were equal protection cases and—
MR. MARCUS: Right to travel.
MR. MORRISON: Right to travel and equal protection. All of them said no good for
these lengthy requirements, but the implicit assumption of all of them was—and you
always know when you see words like this—that a “simple” residence requirement or a
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“mere” residence requirement—those were okay. That was the underlying presumption
of them. We knew that discrimination based on residence alone was going to be a very
tough row to hoe. Fortunately, there was another clause in the Constitution which I didn’t
know much about but I learned a good deal about, called the Privileges and Immunities
Clause in Article Four, Section Three. It has a long, not lengthy, but venerable history of
being used to prevent precisely this kind of discrimination against out-of-staters. The idea
was we were going to bring one of these cases. Before we had a chance to bring a case, I
got a call from a lawyer here in Washington named Vickie Golden, who was then
working for the federal government. I think maybe the Federal Trade Commission, but
I’m not sure. She lived in the District and she wanted to take the Maryland Bar because
she wanted to go into private practice and be able practice in two jurisdictions. Of course,
in the District, being able to practice in multi-jurisdictions is a big plus, especially if you
are dealing with commercial or individual clients who may have business and other
matters in one, two or three jurisdictions. She used to live in Maryland at one point, then
moved into the District. She had a husband and two children and she didn’t want to move
to Maryland. Best of all, she lived on a street off Western Avenue. She lived about a
hundred yards from the District line—from the Maryland line. So not one of these Alaska
kind of things. She asked us to represent her. She had filed the complaint and she served
a bunch of interrogatories on the State Bar. We agreed immediately to undertake to
represent her. The Bar made a motion to dismiss. We opposed it saying, among other
things, that there were facts that they had tried to sneak in, saying that the residency
requirement didn’t serve any purpose and that this was necessary. They had two reasons:
this was necessary to insure that the Bar could continue to supervise people and it was
also necessary in order to do character checks on people. We got an affidavit from
somebody on the D.C. Character Committee saying, “We admit people from all over the
country. We don’t have any problem. They have the burden of proof.” We said we don’t
need a trial. It will be summary judgment, we have limited discovery. We wanted to
depose the head of the Character Committee who would supposedly know about all these
things and get some other records about a few things. Judge Frank Thompson in
Baltimore ruled against us. He said, “No, this is a perfectly valid rule.” We rather
expected we were going to lose at the District Court level. After all, this judge got to be a
federal judge by coming up through the state court system, and these were his friends and
they all had written all the rules. We knew they were there for economic protections and
purposes.
The complaint had originally four causes of action, one of which we dropped. She said,
“I was a former resident and now I’m back and I shouldn’t be discriminated against.” We
tossed that one out. Equal protection we sort of kept in there, but only because it was
there. We had two others. One was the Commerce Clause. We said it’s a violation of the
Commerce Clause because it is a burden on interstate commerce. The main reason we put
this in was because we wanted to focus on the fact that this injured clients. This was our
same theory as in the advertising and in the minimum fee case, that these are about client
protection. Somebody’s got a problem in interstate commerce; we ought to be able to
deal with this. This is a perfect example of where it is and, of course, the fact that she
lived five hundred feet from the border was nice, but we always knew that was evidence
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of how irrational the rule was but we would always have to say, of course, if she lived in
Alaska, she could do it. She probably wouldn’t want to do it if she lived in Alaska.
Of course, the big thing was all she wanted to do was to take the bar exam.
So we lost the case and we took an appeal. Meanwhile, somebody in New York was
challenging the New York requirement. He had lived in New York and then moved to
New Jersey and wanted to get admitted in New York. He filed a case pro se and he had
done all the right things and now he asked us to argue the case. My colleague, John Sims
and I, went—he wrote the brief and we went up and argued the case in the New York
Court of Appeals in Albany and lo and behold, we won, seven to nothing.
MR. MARCUS: On Commerce Clause grounds or Privileges and Immunities?
MR. MORRISON: Privileges and Immunities.
MR. MARCUS: And had he had that in there already?
MR. MORRISON: Yes. But you know, there were a lot of cases. There had been a fairly
recent case involving hunting licenses. There were a whole bunch of old fishing licenses
cases. A hunting license was not held to be fundamental, the game licenses, but the right
to engage in fishing was. In some of these cases they imposed massive amount of taxes
on people who want to do things. There was a case in New Hampshire about income
taxes where they taxed out-of-staters more heavily. There were lots of really good cases.
MR. MARCUS: And those were decided on Article Four, Section Three?
MR. MORRISON: Yes. There were a whole series of cases, all of which were extremely
helpful to us on these grounds. The Commerce Clause never ended up getting decided in
any of these cases. Anyway, the case that ultimately went to the Supreme Court came
from New Hampshire. Kathryn Piper was a resident of Vermont, lived there with her
husband. They also lived very close to the border. Her husband was also a lawyer. They
decided that they did not want to practice together and, in general, it would be better if
she practiced in New Hampshire and he practiced in Vermont.
She was willing to take the bar exam. The First Circuit had ruled in her favor and New
Hampshire took the case to the Supreme Court. The lawyer who was handling the
case—we filed an amicus brief and the lawyer who was handling the case got us to help
out. We went to the oral argument and during the oral argument—I often give this story
as a reason why you don’t want to have outsiders argue cases—the lawyer was asked by
Justice Rehnquist, “Well now, you’re a New Hampshire lawyer. When you want to know
what the New Hampshire Supreme Court did, how do you find out?” He said, well there
are two rules services—something of course which I wouldn’t begin to know or even
thought to ask him. Two opinion services; one you get it once a month and the other one
once a week. Rehnquist said, “No, no. Suppose you want to know what they did
yesterday? How do you find that out? Wouldn’t you read the newspapers?” He looks him
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straight in the eye—the lawyer looks at Rehnquist straight in the eye and said, “I would
never read the Manchester newspapers for anything.” Which completely floored
Rehnquist. He did not get his vote, because he voted against it anyway.
It’s a great lesson in the importance of local knowledge and local ability. If I had known
everything and thought everything, I would never have said it as an outsider in the way
that this guy could say it. It just was a great example. We won that case and there were a
series of other cases. There was a case in Virginia which my colleague, Con Hitchcock,
argued and won, in which Virginia said you can be admitted on motion, but you have to
be a resident to be admitted on motion and if you are not a resident, you have to take the
bar exam. The Supreme Court had no trouble saying, “You can’t do that. It doesn’t have
anything to do with it.”
Then we had another case out of the Fifth Circuit in which the Federal District Court in
New Orleans for the Eastern District of Louisiana had a rule that said you had to either
live or have an office in the State of Louisiana, not just the District, in order to be
admitted to the Bar. You also had to be a member of the Louisiana Bar, which our client
was. He lived in Mississippi. He was a member of the State Bar of Louisiana, the State
Bar of Mississippi, the Federal District Court in Mississippi. He couldn’t get into the
Louisiana Federal Bar because he didn’t have an office there. He lived in Pascagoula
which was about ninety miles away—which was closer than a whole bunch of places in
the State of Louisiana where, if he had lived or worked there, he could have qualified.
Indeed, he could have lived in Texas and had an office in western Louisiana. The
Privileges and Immunities Clause literally applies only to the states so we made a reverse
incorporation argument.
Like Bolling v. Sharpe. We also made an equal protection argument and we made a
supervisory jurisdiction argument—that the federal courts could supervise—the federal
Courts of Appeals first and then the Supreme Court should supervise. We lost in the Fifth
Circuit and we filed a cert. petition. It was less than ten pages and the question presented
was, “May a federal District Court have a residence requirement rule for admission to its
Bar that would be unconstitutional if applied to the state court sitting across the street?”
And the petition was granted and we won the case on supervisory authority. Justice
Brennan said, “You can’t do this. It’s completely irrational.” We won that case because it
was so irrational. The rule was really terrible. Everybody understood exactly what this
was about—protectionism. We thought long and hard, but have never figured out a way
to challenge the requirement that you be a member of the local Bar to be admitted to the
federal District Court. We have never found a good way to challenge that rule. It still
persists. It’s less of a problem because the residence requirement is no longer there so
people can actually become admitted. There has been a fair amount of increase in ability
to get admitted to multiple bars aside from the residence requirement with one exception.
I’ll talk about in a few moments. In most cases, you want to have a local lawyer anyway.
You need a local lawyer just to be there for other things and because they tell you things
that you need to know.
MR. MARCUS: About the judge—
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MR. MORRISON: The judge and the practices and it’s not the end of the world. It is a
bad rule, unnecessary.
MR. MARCUS: It doesn’t exist in the Courts of Appeals anymore.
MR. MORRISON: No, no. The Courts of Appeals are completely open—you can be
admitted anyplace.
Then we had another case for Ron Goldfarb. No relation to Lew Goldfarb. Ron had a
practice in Washington, D.C. He lived in Virginia and as he got along in his practice he
decided that he wanted to open an office in Virginia. At that point, the rule was you could
waive into Virginia if you were admitted in a place that would have reciprocity but you
had to promise to practice full-time in Virginia. He said he wasn’t going to give up his
practice in Washington. He would have an office in Virginia. He would go there on a
regular basis, but he would not swear to be full-time.
We said this is plainly unconstitutional. There is no rational basis at all and we referred to
it as the “full-time victimization rule.” You don’t have to prove that you know anything
about Virginia law as long as you promise to victimize Virginians on a full-time basis.
But if you want to do it on a part-time basis, then it was illegal. We had Commerce
Clause and other grounds and all of our usual suspects. We lost in the Fourth Circuit and
Justice White voted to grant cert. but nobody else—maybe one other person did, but we
didn’t get cert. granted. The “full-time victimization rule” is still there.
The last thing came up just two years ago. No, just a little over a year ago when I was out
at Stanford, a lawyer came to me and he had taken the bar exam in Ohio and Indiana,
practiced in both places. He’d moved to California and had to take the bar exam there
because California makes everybody take the bar exam. He then moved to North
Carolina and wanted to get waived in there. North Carolina had a rule—I’m simplifying
the case just slightly, but the point becomes clear—that said you had to practice in a
jurisdiction which had reciprocity with North Carolina in four out of the previous six
years. Indiana and Ohio both had reciprocity with North Carolina.
MR. MARCUS: But California did not—they hate everybody.
MR. MORRISON: California did not, because it didn’t have reciprocity with anybody.
And so he had been there. Unfortunately, that was his tainted Bar admission and they
wouldn’t admit him. The trial judge, Judge Boyle, said, “This is completely crazy,” and
admitted him.
MR. MARCUS: This is the Judge Boyle whose nomination to the Fourth Circuit has
been stalled for twenty years or so.
MR. MORRISON: Close. He admitted him. They took an appeal and they won in the
Fourth Circuit. The guy came to me (his name was Morrison, actually) and asked me if I
would represent him. I agreed to do so.
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MR. MARCUS: For cert?
MR. MORRISON: For cert. Unfortunately, he had not raised the best issue, which was
the Commerce Clause issue. There are a series of cases, in which the Court has said that
you cannot use reciprocity as a justification for restrictions that burden interstate
commerce. The fact that somebody else does or doesn’t do it to you is not a legal
justification. The issue had not squarely been raised. The Commerce Clause was sort of
in there and sort of not in there. The Fourth Circuit didn’t address it and it was a real
stretch. I took the petition because I hate these reciprocity rules. I think they are
misguided and they are anti-consumer and they are anti-lawyer mobility. I thought that
this rule was doubly goofy that you had to have reciprocity to begin with and then you
had this sort of strained version of reciprocity that sort of undermined everything. If he
had done his life differently and reversed the order—been in California first and then the
other two states, he could have been admitted. We said that’s completely irrational. I
though maybe the Court would be interested in this, but they weren’t. Cert. was denied
and so the reciprocity restrictions still apply.
It matters in a bunch of states where the reciprocity is significant—although the big
problem is California, Oregon—Oregon has limited reciprocity, Arizona, Florida—
So I would say we substantially—not perfectly succeeded—substantially succeeded in
this, and the legal profession is better for it and clients are better off for it.
MR. MARCUS: Yeah, I certainly think the achievements on the legal advertising side,
particularly have had—
MR. MORRISON: And the other thing about the minimum fee schedule case, was that it
became clear that the Bar couldn’t do all sorts of things that it would have done without
going to the courts in terms of their restrictions.
MR. MARCUS: Why do you think—there doesn’t seem to be a lot of fee advertising—of
price advertising by lawyers, though. Am I wrong? And why is that, do you think?
MR. MORRISON: The difficulty is that most lawyer services are on a contingency
percentage fee or hourly basis or they are done by the job but a simple divorce with both
parties consenting may be one price. If there are children, it’s another price.
MR. MARCUS: So it’s complicated.
MR. MORRISON: It’s very complicated to do it in an advertisement. A little of my
hunch is some assessment is made as to how much the lawyer thinks the people can
afford to pay. Prices go up and down to some extent. Advertising locks you into a price.
Sometimes you get a sense that although they say there are no problems, there are going
to be problems. For all of those reasons I think that, in some cases, yes, simple
incorporation, deeds, yes they could be advertised. People probably don’t go to them for
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that. There is a lot more advertising about the type of services, that is what you do. You
couldn’t be able to say before, “I do immigration.”
MR. MARCUS: I understand that. Well big TV advertisers, a lot of them are contingent
fee and I suppose there the dilemma is it’s not attractive to say I charge thirty-three
percent of your award. It is attractive to say, “You pay nothing unless you win.” But even
that is complicated because you have to pay expenses and so on. It is tricky.
MR. MORRISON: It’s tricky.
MR. MARCUS: And maybe it is misleading saying you pay nothing unless you win
unless you reveal that if you do win you owe me twenty-five percent or whatever it is.
MR. MORRISON: Yes and we had a case involving the Dalkon Shield that I argued in
the Supreme Court. Mr. Zauderer was a personal injury/product liability lawyer and he
was doing Dalkon Shield cases. The Dalkon Shield was a very bad device; it had lots of
problems with it. It had been taken off the market, but there were a lot of women who
were injured by it. He took out an ad with a picture of a Dalkon Shield IUD and said,
“Did you use this device and were you injured?” It turns out that the picture was really
important because many women did not know that they used a Dalkon Shield or they
didn’t remember the name. They would remember what it looked like but they didn’t
know its name. The doctor had given it to them and inserted it. They didn’t know. A lot
of them didn’t know that they had any claims and he got a huge number of claims. The
Bar went after him. There was a prohibition on pictures. He lost in the Ohio Supreme
Court, then came to me, and I represented him in the U.S. Supreme Court. We won that
part. The other part of the case was that they said if you said that there were no fees
charged, you had to disclose that the person was liable for costs if they lost. At that point,
of course, the rule in most states was that, in theory, the client was liable for costs.
Everybody understood that no lawyer ever went on and collected the costs from the
client, but the fiction was still there. Now the rules have changed in many jurisdictions so
that the lawyer can agree to absorb all the costs instead of having a charade. In some
places it has not formally changed, but it is, in fact, the same thing. They got him on that,
and they gave him a mild reprimand. They upheld that and ended up with a mild
reprimand.
That has made it more complicated and states have put in some requirements that if you
say anything about fees, you’ve got to say this and that. We said it was too burdensome
and the Court, I think, kind of in a split decision said, “Well, you can make them do
that.” They didn’t think it was all that bad and they probably don’t like these personal
injury ads anyway. You can still say what you want to say. I remember when I was doing
the cert. petition, I couldn’t figure out what the question presented was going to be. We
had five options and what I did was I had a little office pool. One of the questions was,
“Is it unconstitutional to include this picture in an advertisement?” We decided ultimately
to go with something else, but review was granted in any event.
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And so we had that and we had some other lawyer advertising cases but that got me back
to thinking about the requirements about what lawyers have to say. I think if you look at
Web sites of most law firms, they clearly would have violated all the rules and, you
know, in a way the Internet has made advertising much more useful because you could
put so much more in there than having to try to do it in thirty seconds or in a Yellow
Pages ad. I never mentioned this, but I remember reading in New York when I was—I
used to read the Law Journal in those days, occasionally. I remember seeing ads in there
that said, “Dominican or Nevada divorce available.” And then it would say, “For lawyers
only.” Because it was okay to advertise to other lawyers, but not to advertise to the lay
public. That’s how they got around that. Of course, if somebody responded, I’m sure they
represented them.