Lewis E Powell and The American Bar Association

BERNARD G. SEGAL

In my initial draft of this article, I briefly summarized Justice Lewis E Powell's more than 15 years on the Supreme Court as one of the most outstanding and highly regarded Justices in our nation's history However, I then learned that Justice Byron R. White had agreed to submit an article on that subject for this issue of the Yearbook, and certainly no one is more qualified than he to do so. Accordingly I proceed to my specific assignment.

Born in Suffolk and reared in Richmond, Virginia, after a brilliant scholastic record in college, where he won high honors, including election to Phi Beta Kappa, and at law school, graduating first in his class, Justice Powell earned his LL.M. degree at Harvard, promptly after which he embarked upon his career as a practicing lawyer.

His practice developed to be as extensive and diversified as it was efficient and effective. As a member of a leading law firm in Richmond, he represented a wide assortment of individuals and corporations, as well as civic and charitable groups. He excelled in many areas of practice having a very high reputation as a courtroom advocate at both trial and appellate levels. I had occasion, from time to time, to work with him directly sometimes both of us representing a client in the same matter. Accordingly I was able to observe at firsthand the excellence of his representations. I say without doubt that whether in court, or solving an intricate legal problem, he was as skilled a lawyer as I have known.

As ABA President (1964-65) and as President-Elect as well, he initiated highly significant programs and policies to fulfill the obligations of the legal profession to the community-at-large. He is conceded by everyone knowledgeable in ABA affairs and history as having been one of the most effective, most dedicated, and most beloved Presidents and Presidents-Elect the Association has ever had. During the year that he was President, he placed the Association in a new position of leadership in terms of pragmatic institutional recognition of the vast social and technological changes that characterized the times, and in the adoption among others of highly significant programs and policies designed to improve the administration of criminal justice, to fulfill the obligations of lawyers to provide legal services to the needy members of our society to reevaluate the ethical standards of the profession, and to enhance the general reputation of lawyers.

I now proceed to a statement of the outstanding projects Lewis Powell initiated during his term of office. The limitation of space however prevents my presenting as to each of these projects, the development in the years that followed. Perhaps on some future occasion, I will have the opportunity to update each project by giving its present status, in the achievement of which Powell continued to play a role even after his appointment to the Supreme Court.

The Criminal Justice Act of 1964, providing for compensated counsel in federal courts for indigent defendants charged with felonies or serious misdemeanors, having been enacted and gratifying progress having been made in a number of states, Justice Powell, as President of the Association, alerted the profession to the magnitude and urgency of the need for counsel in criminal cases; and he skillfully stimulated action by the organized Bar to meet that need. He also reminded the Bar that its responsibility was no less crucial in the civil justice field.

When the Economic Opportunity Act was enacted in 1964, authorizing community action programs designed to help the impoverished through legal services and other means in local communities across the country there was considerable concern among some members of the profession as to whether the legislation, because it involved massive participation by the federal government in legal aid, would receive the support of the organized Bar. Most lawyers would have preferred local rather than federal solutions. However, under the leadership of Lewis Powell, who recognized that the complexities and demands of society required legal service assistance that was beyond the will or capacity of the profession, or even states and municipalities, to meet, the American Bar Association assumed the national leadership in persuading the organized Bar at all levels to embrace the OEO Legal Services Program then before the Congress. This not only helped rekindle the conscience of the Bar in a critical area in which it had certainly not distinguished itself; it provided the support the program needed to get off the ground. In a letter I received in 1970 from the eminent Sargent Shriver, he referred to the magnificent leadership of Lewis Powell in the formulation and the effectuation of the national program. He praised, too, Powell's statesmanship in the identification and critical appraisal of its obvious problems and uncertainties. Shriver added that he had "come to believe that the Legal Services Program, small though it is, will rank in history with the great triumphs of Justice over Tyranny . . . (and) one of the brightest achievements in our nation's history"

In recognizing the need for broader and more efficient legal services for the poor, Powell did not overlook the mounting problems of other segments of the public in obtaining adequate legal services – the millions of persons who are not so impoverished as to be qualified for legal aid but who nevertheless require legal services and cannot afford to pay for them. And so, at his insistence the American Bar Association created still another agency this time to ascertain the availability of legal services to all segments of society the adequacy of existing methods and institutions for providing them, the need for group legal programs and their relation to the profession's ethical standards, and the most expeditious and effective way to provide such services to a greatly enlarged clientele. "But even as study progresses," Powell urged, "the organized bar at all levels must press ahead with every available means to improve existing methods. . . . It is axiomatic that those (the legal profession) who enjoy a monopoly position have higher duties and responsibilities. In discharging these, the ultimate test must be the public interest."

Recognizing the need for updating the Canons of Professional Ethics, including their observance and enforcement, Justice Powell appointed a new Special Committee on Evaluation of Ethical Standards to deal with that subject. In doing so, he directed the Committee's attention to three examples of the need:

(1) wider discourse on fair trial and free press, lawyers being "a major source of news that may affect the fairness of trials;" (2) the representation of unpopular causes and the providing of aid even to the most unpopular defendants; and (3) the need to revise the Canons of Ethics to recognize the need for group legal services through lay organizations.

Reporting a growing dissatisfaction with the discipline maintained by the legal profession, he courageously acknowledged that the dissatisfaction was justified and requested that the new canons lay down clear, peremptory rules relating directly to the duty of lawyers to their clients and the courts.

One of the most massive undertakings in the history of the Association undertaken during Lewis Powell's administration as President was the project to provide minimum standards for the administration of the criminal justice process–from pre-arraignment and bail to sentencing, post conviction remedies and correctional treatment. Today the historic Reports of the distinguished committee of judges, lawyers, and others initially appointed by Powell, provide innovative and effective standards to improve the criminal process. They were actively considered by legislatures, courts, and law enforcement authorities, and proved, as Lewis Powell predicted they would, to "help materially in improving the fairness, the certainty and swiftness of criminal justice."

In the area of race relations, the following paragraph from President Powell's Address at the Association's Annual Meeting is noteworthy:

Evidence of the esteem in which Lewis Powell was held as a practicing lawyer by the bar of the country was the extremely rare occurrence of election as President of three leading national organizations of our profession – the American Bar Association, the American College of Trial Lawyers, and the American Bar Foundation.

Lewis Powell lead these organizations with enormous compassion, creativity and endless energy Anyone familiar with his record as ABA President could have predicted, as indeed I did 16 years ago in my statement to the Senate Judiciary Committee in support of his confirmation, that when he joined the Supreme Court only seven years after serving as ABA President, he would prove to be one of the truly great Justices of the Court. I said, in part: