Brotherhood of R. R. Trainmen v. Com. ex rel. Virginia State Bar

• Decision Date: 13 June 1966
• Citation: 149 S.E.2d 265,207 Va. 182
• Court: Virginia Supreme Court
• Parties: BROTHERHOOD OF RAILROAD TRAINMEN v. COMMONWEALTH of Virginia ex rel. VIRGINIA STATE BAR.

Page 265

149 S.E.2d 265

207 Va. 182

BROTHERHOOD OF RAILROAD TRAINMEN v. COMMONWEALTH of Virginia ex rel. VIRGINIA STATE BAR.

Supreme Court of Appeals of Virginia.

June 13, 1966.

Rehearings Denied Sept. 13, 1966.

Beecher E. Stallard, Richmond, John J. Naughton, Chicago, Ill. (Henslee, Monek & Henslee, Chicago, Ill., on brief), for appellant.

Aubrey R. Bowles, Jr., Aubrey R. Bowles, III, Richmond (Bowles & Boyd, Richmond, on brief), for appellees.

Before EGGLESTON, C.J., and SPRATLEY, SNEAD, I'ANSON, CARRICO and GORDON, JJ.

GORDON, Justice.

Perhaps we can best delineate the issue now before us by directing attention to what has already been decided and foreclosed.

This suit began in the Chancery Court of the City of Richmond. By decree entered January 29, 1962 (the 1962 decree), the Chancellor permanently enjoined the Brotherhood from violating the laws of this Commonwealth governing the practice of law. See footnote (1) for the Chancellor's factual findings concerning the Brotherhood's illegal practices and the injunctive provisions specifying the proscribed activities.

We affirmed the 1962 decree on the ground it was plainly right. ² But the Supreme Court of the United States disagreed. Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964).

The Supreme Court, Speaking through Mr. Justice Black, framed the issue before it on the appeal from our affirmance:

'* * * (T)he Brotherhood in this Court objects specifically to the provisions (of the 1962 decree) which enjoin it

'* * * from holding out lawyers selected by it as the only approved lawyers to aid the members or their families; * * * or in any other manner soliciting or encouraging such legal employment of the selected lawyers; * * * and from doing any act or combination of acts, and from formulating and putting into practice any plan, pattern or design, the result of which is to channel legal employment to any particular lawyer or group of lawyers * * *. " ³ (377 U.S. at 4--5, 84 S.Ct. at 1115--1116, 12 L.Ed.2d at 92)

The Court then proceeded to uphold the Brotherhood's objection:

'The Brotherhood admits that it advises injured members and their dependents to obtain legal advice before making settlement of their claims and that it recommends particular attorneys to handle such claims. The result of the plan, the Brotherhood admits, is to channel legal employment to the particular lawyers approved by the Brotherhood as legally and morally competent to handle injury claims for members and their families. It is the injunction against this particular practice which the Brotherhood, on behalf of its members, contends denies them rights guaranteed by the First and Fourteenth Amendments. We agree with this contention.' (377 U.S. at 5, 84 S.Ct. at 1116, 12 L.Ed.2d at 92--93)

The Court vacated the decree of January 29, 1962. The case was remanded to us, and we in turn remanded it to the Chancery Court of the City of Richmond, for proceedings not inconsistent with the majority opinion of the Supreme Court. After hearing argument, the Chancery Court on January 15, 1965 entered another permanent injunction against the Brotherhood, the terms of which differed in certain respects from those of the 1962 decree. The Brotherhood has prosecuted this appeal from the decree of January 15, 1965 (the 1965 decree).

The question before us is then quite narrow: Are the injunctive provisions of the 1965 decree consistent with the majority opinion of the Supreme Court in Brotherhood of Railroad Trainmen v. Virginia supra? If so, we should affirm the decree. If not, we must amend the decree to make it consistent.

Out duty to obey the mandate of the Supreme Court is clear. In rendering a decision today, we cannot alter our course because of disagreement with Mr. Justice Black's characterization of the Brotherhood's practice of securing employment of union-selected counsel as an exercise of benevolence for the protection of union members and their families (377 U.S. at 2--4, 84 S.Ct. at 1114--1115, 12 L.Ed.2d at 91--92). Nor can we alter our course because of agreement with the prediction in Mr. Justice Clark's dissenting opinion: 'The potential for evil in the union's system tem is enormous and * * * will bring disrepute to the legal profession' (377 U.S. at 12, 84 S.Ct. at 1119, 12 L.Ed.2d at 96).

This brings us to the task of interpreting the majority opinion in Brotherhood of Railroad Trainmen v. Virginia, supra. But since our interpretation is apposite only insofar as it may bear upon the decree under review, we will first set forth the provisions of the 1965 decree at which the Brotherhood levels its main attack:

'* * * (T)he Brotherhood of Railroad Trainmen, its officers, agents, servants, employees, members and anyone acting in its behalf, * * * are * * * permanently restrained and enjoined * * * from soliciting for, or on behalf of, its Regional or Legal Counsel or any other lawyer, and of its members, their families or any other person to employ such Regional or Legal Counsel or other lawyer to represent him, her or them in court or otherwise, in respect to any claim for personal injury, death or in relation to property; * * * (and) from doing any act or combination of acts that constitutes or amounts to the solicitation of legal employment for or on behalf of any lawyer, or conspiring to do so; * * *

'But nothing herein contained shall be construed to infringe upon or restrict the constitutional rights of the defendant, its officers, agents, servants, employees or members, to advise the defendant's members or their families or others, to obtain legal advice before making settlement of their claims for injury or death, and to recommend a specific lawyer or lawyers to give such advice or handle such claims; provided, however, that the circumstances of such advice and recommendation shall not constitute or amount to, the solicitation of legal employment for or on behalf of any lawyer or lawyers. The term 'solicit' and its derivatives, as herein employed, shall refer to the same terms as employed or intended by the common law, the statutes of this state, and Canons of Legal Ethics of the American Bar Association, adopted in this state.' (The entire injunction is set forth in the footnote.) ⁴ The decree thus draws the line between forbidden solicitation and permitted recommendation. The 1962 decree, vacated by the Supreme Court, had enjoined the Brotherhood from soliciting Or encouraging the employment of lawyers selected by the Brotherhood and from pursuing any plan that would result in the channeling of legal employment (see footnote (1)). The new decree enjoined solicitation, not encouraging or recommendation.

The Chancellor interpreted Mr. Justice Black's opinion narrowly. He interpreted the opinion as requiring only that the Brotherhood be left free to recommend approved lawyers, even though its recommendations would foreseeably result in the channeling of legal employment. He saw nothing in the opinion to prevent his restraint of the Brotherhood's solicitation of legal employment.

The difficulty of drawing a line between solicitation and recommendation is evidenced by the provisions of the 1965 decree that purport to advise what is meant by 'solicitation'. The decree does not attempt to define 'solicitation'; it merely refers to source materials outside of the decree. The decree requires the defendants to understand truly the meaning and intendment of 'solicitation' as set forth in three sources: the vast body of the common law, the statutes of Virginia and the Canons of the American Bar Association adopted in Virginia. Upon pain of contempt if their understanding should be faulty, the defendants are required to forego any action constituting solicitation as so defined.

The decree cannot stand in its present form. As said long ago by Judge Spencer Roane, a decree cannot be properly entered against persons, subjecting them to process for disobedience, 'which as yet remains general and uncertain, and the extent of which, as it relates to them, they (have) no adequate means to ascertain'. Birchett v. Bolling, 5 Munf. (19 Va.) 442, 456 (1817).

We should nevertheless examine Mr. Justice Black's opinion to determine whether it permits drawing a line between solicitation and recommendation in this case, and whether it permits restraint against solicitation. If so, we should not be deterred by the difficulty of drawing such a line by appropriate decretal language.

The State Bar points particularly to this language of Mr. Justice Black's opinion to sustain its position that the Chancellor's injunction against solicitation is consistent with the opinion:

'We hold that the First and Fourteenth Amendments protect the right of the members through their Brotherhood to maintain and carry out their plan for advising workers who are injured to obtain legal advice and for Recommending specific lawyers. Since the part of the decree to which the Brotherhood objects infringes those rights, it cannot stand; and to the extent any other part of the decree forbids these activities it too must fall.' (Emphasis supplied.) (377 U.S. 8, 84 S.Ct. 1118, 12 L.Ed.2d 94)

The State Bar contends that the Supreme Court held the right to recommend protected by the Constitution; that the Court did not hold, or intend to hold, the soliciting of legal employment protected by the Constitution.

But the Court's characterization of the Brotherhood's activities as 'recommending' does not justify the narrow interpretation advocated by the State Bar. The Court's opinion forbids restraint of activities held constitutionally protected. We must leave the Brotherhood free to pursue these activities, however they may have been characterized by the Supreme Court or may be characterized under Virginia law. ⁵

As recognized in the opinion, the Brotherhood carries out its activities pursuant to an established plan. The plan is obviously designed to...