Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1 (1964)

The legal profession has traditionally exhibited antipathy toward activities that could be perceived as encouraging litigation. It has also taken a dim view of nonlawyers providing legal advice. So it is not surprising that the Virginia State Bar (and the American Bar Association, as amicus curiae) sought to prevent a labor union from operating a ‘‘department of legal counsel.’’ This department functioned as a referral service, directing injured union members to local lawyers who could represent them in lawsuits against their employers, and also as an institutionalized warning system to employees, cautioning them not to settle injury claims without first consulting a lawyer.

The Virginia State Bar obtained an injunction against the department, contending that it constituted the unlawful solicitation of clients and the unauthorized practice of law. The U.S. Supreme Court reversed, however, on the grounds that the First Amendment’s guarantees of freedom of expression, assembly, and petition gave the employees the right to associate together for the purpose of petitioning for the redress of their grievances against the railroads. The Court noted that the Virginia bar may have a legitimate interest in preventing ‘‘ambulance chasing,’’ but that the union’s interest was not commercial gain but protecting the rights of its members. One might question whether this is a tenable distinction. Plaintiffs’ personal injury lawyers may be interested both in protecting the legal rights of their clients and in making money. Does one motivation diminish the other? In any event, read in conjunction with the Commercial Speech cases protecting most advertising by attorneys, this case is part of the foundation of the constitutional protection afforded to lawyers’ commercial activities.

W. BRADLEY WENDEL

References and Further Reading

• Erichson, Howard M., Doing Good, Doing Well, Vanderbilt Law Review 57 (2004): 2087–125
• Wolfram, Charles W. Modern Legal Ethics. St. Paul, Minn.: West, 1986

See also Freedom of Association; Lawyer Advertising; NAACP v. Button, 371 U.S. 415 (1963)