Hackin v. Arizona/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

Appellant, who is not a licensed attorney, appeared in a state court habeas corpus proceeding on behalf of an indigent prisoner. The indigent prisoner was being held for extradition to Oklahoma, where he had been convicted of murder and had escaped from custody. Appellant had previously attempted to secure for the prisoner appointed counsel to argue in court the prisoner's contention that his Oklahoma conviction was invalid due to denial of certain constitutional rights. But in Arizona an indigent has no right to appointed counsel at habeas corpus proceedings (e. g., Palmer v. State, 99 Ariz. 93, 407 P.2d 64) including habeas corpus proceedings that are part of the extradition process (Applications of Oppenheimer, 95 Ariz. 292, 389 P.2d 696). Unable to obtain counsel for the indigent, appellant chose to represent him himself and was convicted of a misdemeanor for violation of an Arizona statute providing that 'No person shall practice law in this state unless he is an active member of the state bar in good standing. * *  * ' (Hackin v. State, 102 Ariz. 218, 427 P.2d 910, quoting Ariz.Rev.Stat.Ann. § 32-261, subsec. A.

Appellant contends that this statute suffers from overbreadth and vagueness and is unconstitutional on its face because it interferes with the rights of the destitute and ignorant-those who cannot acquire the services of counsel-to obtain redress under the law for wrongs done to them. He also alleges the statute is unconstitutional as applied here, where appellant acted on behalf of the indigent prisoner only after exhaustive efforts to obtain appointed counsel. Appellant is no stranger to the law. He graduated from an unaccredited law school but was refused admission to the Arizona Bar. See Hackin v. Lockwood, 361 F.2d 499 (C.A.9th Cir.), cert. denied, 385 U.S. 960, 87 S.Ct. 396, 17 L.Ed.2d 305.

The claim that the statute deters constitutionally protected activity is not frivolous. Whether a State, under guise of protecting its citizens from legal quacks and charlatans, can make criminals of those who, in good faith and for no personal profit, assist the indigent to assert their constitutional rights is a substantial question this Court should answer.

Rights protected by the First Amendment include advocacy and petition for redress of grievances (NAACP v. Button, 371 U.S. 415, 429, 83 S.Ct. 328, 9 L.Ed.2d 405; Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697), and the Fourteenth Amendment ensures equal justice for the poor in both criminal and civil actions (see Williams v. Shaffer, 385 U.S. 1037, 87 S.Ct. 772, 17 L.Ed.2d 683 (dissenting opinion)). But to millions of Americans who are indigent and ignorant-and often members of minority groups-these rights are meaningless. They are helpless to assert their rights under the law without assistance. They suffer discrimination in housing and employment, are victimized by shady consumer sales practices, evicted from their homes at the whim of the landlord, denied welfare payments, and endure domestic strife without hope of the legal remedies of divorce, maintenance, or child custody decrees.

If true equal protection of the laws is to be realized, an indigent must be able to obtain assistance when he suffers a denial of his rights. Today, this goal is only a goal. Outside the area of criminal proceedings covered by our decisions in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, counsel is seldom available to the indigent. As this Court has recognized, there is a dearth of lawyers who are willing, voluntarily, to take on unprofitable and unpopular causes. NAACP v. Button, 371 U.S., at 443, 83 S.Ct. 328. See also Johnson v. Avery, 252 F.Supp. 783, 784 (D.C.M.D.Tenn.).

Some States, aware of the acute shortage of lawyers to help the indigent, have utilized the abilities of qualified law students to advise indigents and even to represent them in court in limited circumstances. But where this practice is not sanctioned by law, the student advocate for the poor may be subjected to criminal penalty under broadly drafted statutes prohibiting unauthorized practice of law.

There is emerging, particularly in the ghetto areas of our cities, a type of organization styled to bring a new brand of legal assistance to the indigent. These groups, funded in part by the federal Office of Economic Opportunity, characteristically establish neighborhood offices where the poor can come for assistance. They attempt to dispense services on a comprehensive integrated scale, using lawyers, social workers, members of health professions, and other nonlawyer aides. These new and flexible approaches to giving legal aid to the poor recognize that the problems of indigents-although of the type for which an attorney has traditionally been consulted-are too immense to be solved solely by members of the bar. The supply of lawyer manpower is not nearby large enough. But the necessary involvement of lay persons in these programs threatens their success. Lay involvement was recently cited by New York's Appellate Division as one ground for denying the application of a proposed corporate aid-to-in-digent program for New York City. Matter of Community Action for Legal Services, 26 A.D.2d 354, 274 N.Y.S.2d 779; contra, In re Community Legal Services, Court of Common Pleas of Philadelphia County, No. 4968, March Term, 1966 (decided May 10, 1967).

The so-called 'legal' problem of the poor is often an unidentified strand in a complex of social economic, psychological, and psychiatric problems. Identification of the 'legal' problem at times is for the expert. But even a 'lay' person can often perform that function and mark the path that leads to the school board, the school principal, the welfare agency, the Veterans Administration, the police review board, or the urban renewal agency. If he neither solicits nor obtains a fee for his services, why should he not be free to act? Full-fledged representation in a battle before a court or agency requires professional skills that laymen lack; and therefore the client suffers, perhaps grievously, if he is not represented by a lawyer. But in the intermediate zone where the local pastor, the social worker, or best friend commonly operates, is there not room for accommodation? Dean Charles E. Ares recently said:

' * *  * [T]he structure of the legal profession is middle      class in its assumptions. We assume that the lawyer can sit     quietly in his office awaiting the knock on the door by a      client who has discovered that he has a legal problem and has      found the way to the lawyer's office. * *  * [T]his assumption is not valid for      the great mass of people who live in poverty in the United      States. * *  * [T]he ways in which this structure can be      changed open exiting and interesting prospects.' Poverty,      Civil Liberties, and Civil Rights: A Symposium, 41      N.Y.U.L.Rev. 328, 346 (1966).

Moreover, what the poor need, as much as our corporate grants, is protection before they get into trouble and confront a crisis. This means 'political leadership' for the 'minority poor.' Id., at 351. Lawyers will play a role in that movement; but so will laymen. The line that marks the area into which the layman may not step except at his peril is not clear. I am by no means sure the line was properly drawn by the court below where no lawyer could be found and this layman apparently served without a fee.

Legal representation connotes a magic it often does not possess-as for example, the commitment procedure in Texas, where, by one report, 66 seconds are given to a case, the lawyer usually not even knowing his client and earning a nice fee for passive participation. Weihofen, Mental Health Service for the Poor, 54 Calif.L.Rev. 920, 938-939 (1966). If justice is the goal, why need a layman be barred here?

Broadly phrased unauthorized-practice-of-law statutes such as that at issue here could make criminal many of the activities regularly done by social workers who assist the poor in obtaining welfare and attempt to help them solve domestic problems. Such statutes would also tend to deter programs in which experienced welfare recipients represent other, less articulate, recipients before local welfare departments.

As this Court's decision in NAACP v. Button, supra, and Brotherhood of Railroad Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 84 S.Ct. 1113, 12 L.Ed.2d 89, indicate, state provisions regulating the legal profession will not be permitted to act as obstacles to the rights of persons to petition the courts and other legal agencies for redress. Yet statutes with the broad sweep of the Arizona provision now before this Court would appear to have the potential to 'freeze out' the imaginative new attempts to assist indigents realize equal justice, merely because lay persons participate. Cf. NAACP v. Button, 371 U.S., at 436, 83 S.Ct. 328. As we said in Button, the threat of sanctions may deter as forcefully as the imposition of the sanctions. Id., at 433, 83 S.Ct. 328. In such circumstances, 'the State may prevail only upon showing a subordinating interest which is compelling.' Bates v. City of Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 4 L.Ed.2d 480. Certainly the States have a strong interest in preventing legally untrained shysters who pose as attorneys from milking the public for pecuniary gain. Cf. NAACP v. Button, at 441, 83 S.Ct. 328. But it is arguable whether this policy should support a prohibition against charitable efforts of nonlawyers to help the poor. Cf. Opinion of the Justices to the Senate, 289 Mass. 607, 615, 194 N.E. 313, 317-318. It may well be that until the goal of free legal assistance to the indigent in all areas of the law is achieved, the poor are not harmed by well-meaning, charitable assistance of laymen. On the contrary, for the majority of indigents, who are not so fortunate to be served by neighborhood legal offices, lay assistance may be the only hope for achieving equal justice at this time.

In sum, I find the questions posed in this appeal both timely and troublesome; and it would appear that appellant has standing to raise the indigent's First Amendment rights of advocacy and petition of redress and of equal justice. See NAACP v. Button, supra, at 428, 83 S.Ct. 328; Griswold v. State of Connecticut, 381 U.S. 479, 481, 85 S.Ct. 1678, 14 L.Ed.2d 510. Since the very nature of the inequity suffered by the poor precludes them from asserting their rights to legal assistance in court, why should the layman who steps up to speak for them not be held to be asserting their constitutional rights? Johnson v. Avery, supra, 252 F.Supp. at 786. Cf. Barrows v. Jackson, 346 U.S. 249, 257, 73 S.Ct. 1031, 97 L.Ed. 1586. Accordingly, I would hear this appeal.