the legal aid attorney to comply with the ethical considerations that are expressed in the code of professional responsibility, and particularly I refer to EC2-1, 2-2, and 2-3, and EC8-3 of the code of professional responsibility. In substance, those sections express the ethical responsibilily of a lawyer to engage in educational activities so that the lay public may be aware when it has a legal problem, of the need for a lawyer, and something about how to go about finding a lawyer, and I am pleased to see this stressed, because it is in accord with the code of professional responsibility, and it is a somewhat new provision in ethics, which I don't think you find under the old canon as such. It is stated much more fully in the code.

If I may turn to the other bill, H.R. 8163, which I believe someone referred to as the administration bill, I would like to look first at section 904 (c) (3). Now, I am not on a line-by-line copy. I can't give you a page reference.

I have mine marked up, if I may proceed. I will try to identify it by

section.

A VOICE. Page 6, line 13.

Mr. SUTTON. The section states that the corporation will not interfere with any attorney in carrying out his professional responsibilities to his clients, or abrogate the authority of a particular jurisdiction to enforce the applicable standards of professional responsibility which apply to the attorney. There is a similar provision in section 905 (a) (1), dealing with what the corporation shall do, and it states that the corporation shall assure the maintenance of the highest quality of services and professional standards and so forth, and the protection of the integrity of the adversary system from any impairment. I have no objection to those provisions. On the contrary, I approve of them, but as I read the rest of the bill, I believe there may be a conflict between those provisions and some of the provisions of the Code of Professional Responsibility, in the jurisdications that have adopted the Code of Professional Responsibility, and I would like, if I may, to state some of these provisions that I think may be in conflict with the code, or at least a portion of the code, if not with a particular provision of the code. So I would turn-if I have got my references right to section 905 (a) (6). This is the list of what the corporation shall do under section 905(a). The corporation shall assure that all attorneys refrain from undertaking to influence the passage or defeat of any legislation by the Congress or State or local legislative bodies, by representations to such bodies, their members or their committees, while engaged in activities carried on by the legal services program. I stop there because there are two different provisions in this section. I am concerned with the comparison of this as against canon VII of the code, and particularly disciplinary rule 7-101-A. Possibly the two could be reconciled on the basis that this is a law if passed. However, the philosophy of rule 7-101-A is that the attorney shall zealously represent his client within the bounds of the law, and to my view, this places a limitation upon the attorney for the poor that is not placed by the code on attorneys for any other group: To wit, he cannot appear, I take it, before the city council to argue for a change

in zoning. This is a limitation, I think, that is contrary at least to the thrust of the principles of canon VII. I can see a way, perhaps to reconcile the language of the two-not the philosophy of the two. Mr. STEIGER. Professor, in what way would you attempt to reconcile them?

Mr. SUTTON. I wish I had prepared language for this, because I think it is always more helpful to have exact language. My idea is that it would be better to state in that provision expressly that the attorney, in representing a client, may appear in the same capacity that any other attorney may, before any legislative body, whether we are talking about the State, Federal, or local level. The reason I would word it that way, there are certain requirements on registration if one is lobbying before a State group. I had it while I was in private practice. I appeared before legislative bodies, and there are some regulations to comply with. I did it on behalf of the clients, and it seems to me that a lawyer in representing clients should be able to do this without regard to who is paying his fees.

Mr. STEIGER. Let me pursue this one more minute, if I may, Mr. Chairman. I don't like that provision, and I am delighted that you also have reservations over restricting legislative advocacy. For the sake of argument let me put on another hat and try to develop the rationale behind the Administration inclusion of that provision. In essence, they are trying to restrict the legal services attorney, who is paid by the Federal Government, from going off on his own without reference to representation of clients. So may I ask you what counseling you can give us on this particular point-that is to say, how do we avoid limiting the lawyer, as this language does, in his responsibilities to his clients. How would you provide a limitation on the legal services lawyer who is not representing a client but who might also want to go out, in terms of lobbying before a State legislature or city council?

Mr. SUTTON. It seems to me you would do this in terms of the funds that no funds of a recipient organization can be used for this purpose, nor shall the lawyer so engage in activities when he is not representing a client during the time he is employed or while he is serving in the capacity of an attorney for legal aid. That gets me to the second part, because it ties in directly. The second part of section 6 requires that attorneys employed full time by Legal Services programs funded by the Corporation shall refrain from lobbying at any time unless they are called upon. And I have an objection to that, although it is a milder objection than the first, because my first objection, I think, goes to the nature of the attorney-client relationship. My objection to the second portion really relates to canon VIII of the code of professional responsibility. This is a fairly new concept as far as the old canons are concerned, I believe, but canon VIII states that a lawyer should assist in improving the legal system, and the first statements have ethical considerations. EC8-1 and ECS-4 speak to the dutythe ethical duty on that plane-not a personal duty in the sense of discipline, but an ethical duty to improve our legal system to make our legal system work better. And if I may read part of EC8-1, it states that changes in human affairs and imperfections in human insight make necessary constant efforts to maintain and improve our legal system. This system should function in a manner which commands public re

spect and fosters the use of legal remedies to achieve redress of griev

ances.

By reason of education and experience, lawyers are especially qualified to recognize deficiencies in the legal system and to initiate corrective measures therein. Thus they should participate in proposing and supporting legislation and programs to improve the system without regard to the general interest of clients or former clients. I take it that by being here today I am, in a sense, attempting to comply with that portion of the code, and I submit that this is something that all attorneys should be permitted to do-not use Federal funds, not use legal aid funds to do this, but on their own time. I hate to see a restriction on their carrying out that ethical consideration by limiting their abili ties there and not allowing them as individuals to give disclaimers that they are not appearing for any organizations in carrying out such activities.

Mr. FORD. Professor Sutton, this section is especially more bothersome to me perhaps than to you. I have found it totally repugnant to have this kind of a bill in which we suggest that we are going to separate out an attorney who finds himself engaged in representing people under the Legal Services program, who ceases to be a citizen with the same rights as any other citizen as a result thereof. As a so-called Yankee liberal, I am not supposed to be deeply concerned with the construction of the Constitution, but it bothers me that a number of times we have traded off, in order to pass a piece of legislation or accomplish a particular purpose, little pieces of this constitutional purity, and in this regard, Senator Erwin from North Carolina and I, and, I think, the other members of this committee, are in complete accord and are completely attuned to one another. This is another example of an overzealous-I hope we don't offend the women's lib-young man on the President's staff came up with this language, which really we find very difficult to justify in terms of any practical value, and it suggests that we are such delicate flowers in the legislative bodies of the country, the Congress being only one of them, that we must be protected from these bigoted lawyers once they are tainted by becoming a part of the Legal Services program. I hope that people like you will look at this in terms of what it really is. How easy it is for people drafting legislation at Federal levels to say that in return for this we will trade off that and throw away little pieces. We do it with Federal employees for a whole variety of reasons. What amazes me, the Post Office and Civil Service Commission has spent a great deal of time circumscribing the activities of the Federal employees under the guise of protecting them under the civil service. There is no precedent for this kind of impediment on anyone.

General Westmoreland is free to pick up the phone and call any one of us and say that he wants more money in the military appropriations, and certainly no one would consider a restriction that General Westmoreland should not call me and talk to me. Even when my son was in the service, it was not improper for him to call me and remind me that my son was working for him and he wanted money. He never did, but there is no precedent for this kind of impediment, and I hope that you and other members of the bar will scream, because this is a-Congressman Meeds picked it out in a hear

ing in Washington, and it is, at first, a kind of harmless thing; but as a lawyer, the more I read it and the more I hear people bringing it up, the angrier I get. It is really not consistent with my concept of a lawyer's being a real person and, you know, we defend people who do very bad things, and we do so under the assumption that by defending someone we do not automatically become a coconspirator or an accessory. Yet for some reason, a person who from 9 to 5 counsels poor people can't thereafter even write a letter to me as a Congressman and tell me what is wrong with this legislation.

Mr. SUTTON. I see your point exactly. I believe the code position may go even further than you are suggesting. This, I take it, would place a lawyer for a legal aid service in a position where he could not do what the code says he should be doing. Not only is the code saying he may, but it is saying he should be doing this to improve the position. This bill is saying, as I read it, he should not be doing it; so, to me, this is putting the attorney for the poor on a different level from other attorneys, which is my objection.

Mr. MEEDS. Mr. Chairman, may I put a question to the witness at this point?

Mr. FORD. Go ahead.

Mr. MEEDS. It seems to me, Professor Sutton, that a simple provision prohibiting the lawyer from legislative advocacy, unless he has a specific client or does so on his own time, would take care of those problems.

Mr. SUTTON. I agree.

Mr. MEEDS. First of all, it requires him to have a client, if he is going to be doing it on Legal Services time, so to speak, and secondly, it would allow him to be a first class citizen on his own time. Mr. SUTTON. Exactly, I agree.

I turn next to section 905 (a) (8) we are in the same section, but this is, if I may read it, I am quite disturbed about this particular provision:

The corporation shall establish guidelines for a system of review of appeals to be implemented by each recipient to assure the efficient utilization of resources and to prevent the taking of frivolous and duplicative appeals.

I am concerned with three or four provisions there, or three, I believe. I have thought about it quite a bit, and I can't reconcile that with the philosophy of canons IV and V in the Code of Professional Responsibility. I can't read this anyway except as a direct interference with the attorney-client relationship, and let me explain my reasons for saying that. The review of appeals-I take it any guidelines for review would tell a local board, like the one on which I served, to look at the individual case and see if this is a proper one for appeal. I can't reconcile that at all with the opinion that I just mentioned, the ABA opinion 324, which says, "Do not use members of the local board, do not deal with the cases on a case by case basis," and I would also refer to disciplinary rule 5-107B of the Code of Professional Responsibility, which says, and I quote:

A lawyer shall not permit a person who employs or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal service.

To my way of thinking, the lawyer working for a local board in rendering services is being paid by the board or by OEO funds-Federal funds in part, and in part by local funds, but he is being paid by

one other than the one for whom he is rendering the service, so this I think is applicable. It says he shall not permit another to direct or regulate his professional judgment, and the opinion seems to be saying that the local board shall not tell him whether or not he shall take an appeal. This is a matter of professional judgment, so this seems to me to be directly contrary to the disciplinary rule.

Mr. STEIGER. Professor Sutton, you have referred now to what I understand is ABA 324.

Mr. SUTTON. Right.

Mr. STEIGER. By chance, do you have a copy of that, that you might be willing to leave with us

Mr. SUTTON. Yes, I do.

Mr. STEIGER (continuing). Before you depart?

Mr. SUTTON. I have marked it up, but I will be happy to leave it you if you will ignore the marking on it.

with

(The document referred to follows:)

AMERICAN BAR ASSOCIATION

FORMAL OPINION 324

The governing board or body of a legal aid society has the right and obligation to establish and enforce broad policy regarding the operation of the agency, but beyond this function the board must scrupulously guard against unreasonable interference with the handling of specific cases or with the representation of specific clients by staff attorneys.

CANONS OF ETHICS: 6, 8, 15, 35, 37

Code of Professional Responsibility: Canons 2, 4, 5, DR 2–103(D) (1), 4–101(B) (1), 5–107(B), EC 2–25, 2–27, 2–28, 4–2, 5−1, 5–21, 5–23, 5–-24 Recent years have fortunately witnessed a burgeoning of legal aid programs for the poor and others unable to afford reasonable fees for legal services. Subject to local variations, legal aid programs have as their goals one or more of the following: (1) providing legal assistance for persons unable to afford the cost of legal services; (2) educating the community as to the existence of legal problems; (3) achieving law reforms through suggested legislation or test cases; and (4) conducting research into the substantive and procedural law affecting the poor and others whom legal aid programs serve. Depending upon each legal aid society's' articles of incorporation, charter or constitution, as the case may be, the programs are often administered by a board of directors or similar body whose membership may consist solely of attorneys, solely of lay persons, or of both attorneys and lay persons. The nature and extent of the control exercised by the board over the lawyers employed by the society does, of course, vary considerably.

The activities of a legal aid society where the subject of criticism by various public officials and certain of the news media. As a result of this criticism, the legal aid society's activities were examined by a special committee of the local metropolitan bar association, which concluded its report by using the following language with respect to the primary complaint directed against the society's representation of "militant" groups and causes:

"Unquestionably, the Society has, by its representations in certain cases .. given support, direct or indirect, to causes or activities which may be considered militant. However, up to the present time, representations of this kind have been relatively few in a relation to the some 5,000 representations afforded by the Society during the period January 1 to November 30, 1969. It is probable that publicly expressed concern as to the Society's support of 'militant' causes would appear to relate more to what it may do rather than to what it has already done.' "The President and Director of the Society made it quite clear to your Committee, as they have in the press, that the Society intends to undertake the representations of groups of poor persons where it feels they have a just cause, regardless of whether such groups are generally regarded as militant. Such representation may be expected to take a variety of forms, from the represen