*1 Richmond of Vir Railroad Trainmen v. Commonwealth ginia, Ex Rel. State Bar. 13, 1966. June Record No. 6229. Snead, I’Anson, Gordon, Present, J., and Carrico C. Eggleston, Spratley, JJ. *2 Beecher E. Stallard and and (Henslee, Naughton Monek, John J. on Henslee, brief),, for the appellant. R. Aubrey and III Bowles, R. and Bowles, (Bowles Aubrey Jr. on Boyd, brief), for the appellees. J., delivered the court. Gordon, the we can best the delineate issue now before us Perhaps directing by attention to what has been decided and foreclosed. already This suit the Richmond. began City decree By 29, 1962 (the decree), the Chan January cellor the the laws permanently enjoined violating of this Commonwealth the of law. See foot note (1) for the Chancellor’s factual the Brother findings concerning (1) “The defendant Brotherhood in 1930 make avail- adopted designed plan members, able to its members, and the families its deceased serv- professional ices of attorneys the Brotherhood to by them in claims represent per- sonal or death injury out arising of railroad service. “In order to implement this the Brotherhood established at its plan Grand Lodge (renamed a ‘Legal Aid 1, 1959, Department’ on January Coun- ‘Department Legal sel’), divided the United into States and Regions, entered into with agreements certain attorneys law selected the Brotherhood in each by called Re- Region, (on gional Counsel). Counsel and after January called Legal “The defendant Brotherhood one or assigned more ‘Regional Investigators’ counsel, each such who were paid by Brotherhood. n “The operation of this resulted, plan results, has and inception still all, or channeling all, to, of, claims for substantially personal injury death mem- (or bers into the hands of such Regional Legal) Counsel. “In furtherance of the the defendant Brotherhood plan advised, has and con- advise, tinues its members and the families of deceased members respect to the claims; out, aspects their held out, has and continues hold Re- (or gional Counsel Legal) as the .only lawyers approved Brotherhood to aid families; controlled, members control, and their hs§ and continues to directly and the
hood’s specifying injunctive provisions illegal practices activities. proscribed was right.2
We affirmed decree on plainly ground and their members to its counsel the fees to be such indirectly, charged by of a or death families; notice of has furnished to such counsel prompt in railroad service for the purpose obtaining counsel such member of aiding solicited, and continues families; has and their legal to its members employment by counsel; salaries solicit, has paid such such claims handling (whose employment to solicit legal chief function is Regional Investigators advise, mem- advised, claims), continues such counsel to has such prosecute (or Legal) the Regional the families members that bers and of deceased ac- has make advances during pendency expenses defray fees; has coun- counsel’s a share both cepted, tenanced the indirectly, directly Investigators the Regional counsel of such fees sharing who counsel. others procure practices States in courts the several “Various throughout find- similar have reached have been inquiry of defendant Brotherhood subjected the defendant practices the continuance and have enjoined facts ings Brotherhood and its Counsel. Regional (Legal) *3 to April on occasions prior made has protestations “The defendant Brotherhood has and 1, 1959, plan aspects would the objectionable that it discontinue so; in is admitted it has done yet from time time made that it to protestations 1, 1959. continued April up Brotherhood’s answer that these practices and still adheres pattern “The court finds that the defendant Brotherhood in and 1930. design formulated plan implemented this for there reasonable ground apprehension “And court finds that is will, Brotherhood’s the defendant and course of in furtherance of conduct plan Richmond, within of into effect in the City avowed and purpose, adopted put of this court. jurisdiction “Wherefore, that the Brotherhood Decree the court doth Order and Adjudge, members Trainmen, officers, and its and of Railroad servants employees, agents, manner, behalf, now, be, directly in in from any and are acting enjoined they of Vir- in the aforesaid Commonwealth or indirectly, engaging practices or and, advice to its members ginia; legal from or furnishing particular, giving only approved law- families; holding lawyers it as the their yers selected out from an acci- families; from informing any lawyer to aid the members or their or deceased of an injured and the name and address dent has occurred furnishing any inor for such lawyer, member for the purpose obtaining legal employment soliciting encouraging selected other manner or lawyers; will defray expenses from or that such selected lawyers stating suggesting di- from controlling, and make advances to clients settlement pending from making or to be charged any lawyer; fees charged rectly indirectly, for whether the solicitation of legal employment any for compensation otherwise; from in manner in the commission or any sharing by.way salary, of such fees any lay- fees of or countenancing splitting legal man or any lawyer, any acts, doing act or combination lay agency; from any pattern design, putting practice the result formulating plan, into legal employment any particular group law- which is to channel and, the laws of law yers; violating general, Commonwealth Virginia.” [Emphasis supplied] 12, we refused the order 1962. By petition June But the Court of the States Brother- United disagreed. hood Railroad Trainmen v. 1113, 377 U.S. Virginia, 12 L.ed.2d Court, Black, framed speaking through the issue before on the it from our affirmance: appeal “ * * * Brotherhood in this Court [T]he objects specifically [of decree] enjoin
.. from out it as the holding lawyers only approved to aid the members or their families; ... or in lawyers any manner of the se- encouraging legal employment lected . . . and from act or acts, combination of lawyers; doing any and from into formulating putting practice any plan, pattern the result of which is to channel design, ....’” (377 4-5, U.S. at particular lawyer group 1115-1116, S.Ct. at 12 L.ed.2d at 92) The Court then the Brotherhood’s proceeded uphold objection: “The Brotherhood admits that it advises members and their advice before settlement of dependents making their claims and that it recommends to handle particular attorneys such claims. The result of the admits, is to plan, channel particular lawyers approved by the Brotherhood as to handle legally morally competent claims for members and their families. It is the which the Brotherhood, on behalf of its mem- particular practice bers, contends denies them the First and Four- rights guaranteed by teenth We Amendments. with this contention.” U.S. at agree 5, 84 S.Ct. 12 L.ed.2d at 92-93)
The Court vacated the decree of 29, 1962. The case was January remanded us, and we in turn remanded it to the Richmond, City inconsistent with the proceedings *4 of the After Court. majority opinion Supreme hearing argument, Court on 15, 1965 entered another Chancery January permanent the Brotherhood, the terms of which differed injunction against certain from those of the 1962 decree. The Brotherhood respect prosecuted appeal has Tanuary 15, (the the decree of decree). us before is then narrow: Are question quite injunctive Court, an to this appeal thereby decree of the affirming Court of City of Richmond. (3) See footnote for the complete injunctive of the decree. The provisions Mr. Black are provisions quoted by in footnote emphasized Justice decree consistent with the of the 1965 majority opinion provisions Railroad Trainmen v. Vir in Brotherhood of the Court not, If we must should affirm the decree. If we so, ginia, supra? it consistent. amend the decree to make is In clear. the mandate Our to obey duty we cannot alter our course because of decision a today, rendering characterization of the Broth- disagreement Justice of union-selected counsel erhood’s securing union members benevolence for as an exercise of protection 2-4, 1114-1115, at at 12 L.ed.2d families (377 and their course because of can we alter our 91-92). at Nor .with agreement “The in Mr. Clark’s dissenting opinion: po- prediction union’s is enormous and . . . will tential evil bring system U.S at 84 S.Ct. at to the legal profession” disrepute 96). 12 L.ed.2d task us to the
This majority opinion brings interpreting Railroad Trainmen But since in Brotherhood Virginia, supra. is insofar bear our only apposite upon interpretation review, we will first set forth the under levels its main which the Brotherhood attack: decree at “ * * * officers, its Brotherhood of Railroad Trainmen, [T]he members and in its be servants, anyone acting agents, employees, # * # restrained and half, are . . . . . . enjoined permanently for, of,, behalf or Counsel or or on Regional Legal any members, their families or of its other any any or other or Legal lawyer Regional repre employ otherwise, in claim in court or him, sent her or them respect any * * # death or relation to [and] property; injury, personal act combination of acts that constitutes or from doing any for or on behalf to the solicitation amounts *#so; to do conspiring any lawyer, shall be herein contained construed to “But infringe upon nothing defendant, officers, restrict the constitutional members, servants, to advise defendant’s employees agents, advice others, their families or before members or death, of their claims for and to recom- settlement making such advice or handle mend give specific however, that the circumstances of such provided, to, shall not constitute recommendation or amount advice for or on behalf of solicitation lawyer.or derivatives,, and its as herein term ‘solicit’ employed, lawyers. *5 refer to the same terms shall intended the com- or employed by law, state, mon the statutes this and of Canons of Ethics of Legal the American Association, Bar in this (The state.” entire adopted is set forth in the footnote.)4 decree thus draws the line between solicitation and forbidden decree, recommendation. vacated the Su- permitted Court, had the Brotherhood from or en- preme enjoined soliciting of the Brotherhood couraging employment lawyers and from that would in the result of pursuing any plan channeling (see footnote (1)). The new decree solic- enjoined itation, not or recommendation. encouraging The Chancellor interpreted opinion narrowly. He that the Brotherhood interpreted requiring only “ * * * [T]he Trainmen, officers, Brotherhood of Railroad its agents, serv- ants, behalf, be, members employees, are, in its anyone acting now they restrained permanently from or advice its enjoined giving furnishing legal families; members or their for, of, Regional or on its or from behalf Legal any any Counsel or other lawyer, members, any their or of families person employ Regional Legal lawyer or represent him, Counsel or other her or them in or otherwise, respect court any personal in claim injury, for death inor property; relation to from any or or informing any lawyer lawyers person whomsoever that an accident has been suffered member or non-mem- ber the said of Brotherhood and the name and address of such furnishing or deceased for the of purpose for law- obtaining legal employment any from yer; or stating that a suggesting recommended defray expenses of kind or make any advances for to such any purpose or their injured persons claims; families pending settlement of their from or controlling, directly indirectly, the fees or to be charged charged from or by any lawyer; accepting receiving kind, of compensation or any for directly the solicitation of em- indirectly, legal ployment for any lawyer, otherwise; whether of commission or by way salary, from in manner sharing in the any fees of or legal any lawyer countenancing of or splitting sharing fees or from any layman lay agency; sharing otherwise; for or any recovery personal death injury or by gift, assignment doing any act or combination acts that constitutes or from amounts to the of solicitation on or conspiring for behalf of and, so; general, do violating laws law in aiding Commonwealth abetting others to do so. nothing “But herein contained shall be infringe upon construed to or restrict the constitutional the defendant, agents, its officers, employees servants, members, to advise the members or others, their to ob defendants families making tain advice settlement their claims or death, and before specific lawyer give recommend a such advice or handle such provided, however, the circumstances such advice and recommenda to, tion shall not constitute or amount the solicitation any lawyer lawyers. on The term ‘solicit'1 derivatives, and its as .herein behalf of employed, employed shall to the same terms as or intended the common refer Legal law, state, the statutes and Canons Ethics the American Bar adopted Association, in this state.” [Emphasis supplied] rec- left free to even recommend though approved lawyers, ommendations would in the result channeling légal foreseeably He saw his restraint employment. nothing prevent of the Brotherhood’s solicitation of legal employment.
The a line between solicitation recom- difficulty drawing mendation is evidenced the that by to advise what is meant The decree does “solicitation”. purport by not to define refers source mate- it to “solicitation”; attempt merely rials outside of the decree. The decree the defendants to requires understand the and intendment “solicitation” as truly meaning set law, forth in three sources: the vast of the common the body statutes of and the of the American Bar Association Canons Virginia if their adopted Virginia. Upon pain contempt understanding should be the defendants are to action faulty, required forego any solicitation so defined. constituting The decree cannot stand in its said form. As present long ago by Roane, a decree cannot be Judge Spencer properly against them to for disobedience, “which as persons, subjecting process yet remains uncertain, and the extent of as it which, relates general them, to no means to Birchett ascertain”. [have] they adequate (19 Munf. Va.) Bolling, We should nevertheless examine Mr. Black’s opinion Justice
to determine whether it a line between solicitation permits drawing case, and recommendation in this and whether it restraint permits so, If solicitation. we should not be deterred against of by difficulty such a line decretal drawing by appropriate language. The State Bar to this of Mr. points particularly language to sustain its that the Chancellor’s position is solicitation consistent with the against opinion: “We hold the First and Fourteenth Amendments protect of members their Brotherhood maintain right through carry out their workers who are plan advising injured advice and for Since recommending specific lawyers. part decree which the those objects infringes rights, stand; cannot and to the extent of the decree forbids part these activities it too must fall.” [Emphasis supplied] 1118, 12 L.ed.2d 94) The State Bar contends that the Court held the recommend the Constitution; that the Court did protected by not hold, or intend hold, legal employment protected the Constitution. by
But the Court’s activities characterization of the Brotherhood’s ad- does not the narrow “recommending” justify interpretation vocated The restraint of State Bar. forbids activities held the Broth- We must leave constitutionally protected. erhood free to these have been activities, however pursue they may characterized be characterized under Court or law.5
As ac- the Brotherhood carries out its recognized opinion, tivities an established is pursuant plan. obviously designed plan channel In selected it. carrying out the Brotherhood seeks out each trainman or plan, member of his It advice about the family. only gives general counsel, wisdom of but also recommends engaging Brotherhood. specific Regional sustained the Supreme the restraint expressly objec- tion activities in “soliciting encouraging . . . ... Brother- lawyers [selected by While the Court hood]”. sustaining objection, recognized *7 the was from restraint of activities asking protection resulted in the of admittedly channeling (See the of Mr. particular lawyers. language opinion Justice in the fourth and fifth of this quoted paragraphs opinion.) We the as the State’s to restrain interpret opinion denying right these activities. The Court held that the Brotherhood’s activities fell within the of the First Amendment of free protection guarantees In the the State had speech, petition failed to show assembly. opinion, interest that would
any appreciable public justify restraint the pursuit constitutionally protected activities.
Our of the should come no interpretation majority opinion to the bar. The was viewed as a further surprise opinion generally area Federal inroad into an that had been as reserved to regarded the the states—the law a within state. Both regulation practice the State Bar and the American Bar Association so Virginia regarded or, least, the at concern that it would be so opinion expressed grave interpreted.6 doubted,
It cannot be the moreover, dissenting Justices the statement in the Compare borrowed from majority opinion, N.A.A.C.P. Button, U.S. “. . . the [cannot 429: exercise of constitutional 93). S.Ct. 1117, foreclosed] mere labels” 12 L.ed.2d (6) See the State a petition Bar for Virginia of this case the rehearing and the amicus brief of the American Bar Association in Supreme support the have Court so would
Supreme regarded They hardly opinion. re- such dire results if had the merely predicted affirmed the majority opinion the that the of free included right proposition speech recommendations to fellow citizens. give did, did Black shrink,, Virginia Legislature “solicitation label attaching employment” professional to activities like those conducted the Brotherhood as shown by § 1964), the record in this 54-78(c) case. Va. Code Ann. (Supp. a statute, part “running capping” provides: “ at ‘'Solicitation is the professional employment1 obtaining to obtain for an at law of some tempting attorney representation
other to render services for person receive law will or whereby attorney compensation; that neither conduct limited to mere statements of provided a uni nor conduct respecting ability pursuant form aid or referral State plan approved by Virginia Bar, shall be deemed the solicitation of professional employment.” Whether or not the Brotherhood confines its words to those of recommendation, includes far more than “mere state- conduct ments of activities, of a Its opinion respecting lawyer”. ability are designed representation specific lawyers, illegal under the statute This statute is proscribing running capping. not referred to decree, but is specifically incorporated reference laws by in general law practice The statute authorizes the Virginia. injunction Chancellor but the must to the mandate of the yield Court. We do not rule out the laws applicability regu law, lating in other cases. We statute, including running capping hold that these laws cannot be invoked only the Brotherhood in this case because of the mandate mandate, Court. That to the according majority *8 was issued to to conduct activities under a protect right benev concerned with the olently inspired plan under prosecution statutes (the Federal Act and the Federal Em Safety Appliance Act), where the State had failed to show an ployers Liability ciable appre interest. time can tell public whether a contrary sim Only ilar, mandate will'be issued in a case different facts.. presenting Nor do we rule out the laws and applicability Canons Virginia 960, was petition. 1625, denied. 377 84 rehearing S.Ct. 12 L.ed.2d in Counsel disciplinary injunctive proceedings against Regional other the Brotherhood who have lawyer approved by solicited, or of, authorized solicitation joined legal employ- ment.7 We do not this dictum in Mr. interpret out the laws and Canons ruling applicability “And, of course, proceedings: lawyers accepting employ- ment under this have a like constitutionally protected plan protec- tion State cannot 1118, U.S. at at abridge” 12 L.ed.2d at 94). We take this statement as that the indicating activities, which were held constitutionally protected case, under the facts of this do not from accepting preclude We do not the statement as employment. interpret denying State’s who are power enjoin discipline attorneys parties solicitation of their employment. another of error, the Brotherhood
By assignment objects the Brotherhood portion enjoining “from whomso- informing any lawyer lawyers any person ever that an accident has been suffered a member or non-member of the said Brotherhood and the name and address of furnishing or deceased for the purpose obtaining legal any lawyer”. This is directed of information injunction furnishing for the to solicit purpose enabling lawyers legal employment. the workers’ majority opinion upholds “constitutionally guaran- teed to assist and advise each other” (377 U.S. at 84 S.Ct. at right 1116, 12 L.ed.2d 93). not, It does in our the Broth- opinion, give erhood the to take action that is to enable designed lawyers solicit We therefore overrule the Brotherhood’s ob- employment. insofar it relates to the words “or jection, except any person whomsoever”. After deleted, those words are injunction restrain actions to assist clearly and only designed running for themselves. capping of error, the Brotherhood com-
By many assignments of the Chancellor’s evidence, admission of certain when this plains case heard, was first and of decree, not dis- provisions cussed in this that are the same as opinion, substantially of the 1962 decree. The in Brotherhood Railroad Trainmen casts no Virginia, supra, doubt upon of correctness of our order, insofar as we overruled these previous (7) The in this case is directed to non-lawyers. Regional was named as a but was served with party, process. *9 sound No decree right.8 plainly objections holding in these order our has been advanced
reason reversing previous respects. decree the delete from be entered will The order to re- case will be The in footnote (4). words set forth emphasized be that Court for manded to may any proceeding decree. enforce the modified to necessary and remanded. Modified, affirmed J., dissenting. Carrico, case involved in this that the labor union I do not
I dissent. agree business for its sixteen solicit be to should regional legal permitted Court that the United States and I cannot believe counsel Supreme such a result to ensue. ever intended that it finds a clear
The Supreme expression majority says the union which it to hold that Court’s may engage requires opinion has found which the then, The in solicitation. something majority, and which failed to writer that express plain language opinion Comment, be an elusive See The have found to others prey. quite Law Review Case, 51 Va. 1693. have than I do not clairvoyance any greater powers pretend but, have tried Court’s who others decipher Supreme opinion was that the had the that the court held union me, all advice and workers obtain recommend advise legal injured that, in so advising recommending, lawyers, specific union in solicitation. was not engaged course, that I do not even with that futile to It is, say agree I not, bound it. would extend the I am though, holding. vague one iota beyond holding. language construction, as was the chancellor’s, is the nar- Admittedly, my construction rowest placed upon possible But, in the interest the ethics protecting opinion. such a I believe construction to be both fully legal profession, warranted crucially necessary. the chancellor the union’s decree of declared respects recently advice advise workers and to recom-
right mend forbids solicitation. I would lawyers. specific the chancellor those the actions of affirm respects.
(8) See Footnote to extend its I would leave itself to the ruling up was its intention if business, the union to solicit permit are no better the first While prescience place. my powers chance there is a abilities I believe that than good clairvoyance, my that it had no such court, that the if say given opportunity, intention.