Race, Class, and Legal Ethics in the Early NAACP (1910–1920)

SUSAN D. CARLE

In 1916, Charles Anderson Boston, one of the members of the first national Legal Redress Committee of the National Association for the Advancement of Colored People, spoke at the organization's board of directors meeting to endorse the use of new litigation strategies in the fight against racial segregation. The "proper presentation of the legal fight against segregation," Boston urged, should focus on gathering "facts, not law" to demonstrate to the courts the law's "actual operation."1 Boston's emphasis on using facts to demonstrate the law's operation accorded with the NAACP's litigation strategy, which relied not only on gathering and presenting such facts but also on creating facts by carefully staging scenarios that would present the right test cases to the courts for adjudication.	1
At the same time, Boston sat on a number of bar association committees that promulgated and enforced legal ethics rules. Some of these rules were at odds with the NAACP's litigation plans. For example, these committees adopted strict rules that forbade lawyers from "stirring up" litigation, advertising their services, or approaching prospective clients with offers of legal representation. The NAACP, nevertheless, engaged in many such activities, including staging confrontations to create facts for test cases, speaking before large audiences to recruit plaintiffs and raise money for cases, and writing letters to strangers to advertise its services and solicit clients. Indeed, not only Boston but almost all of the lawyers on the NAACP's first national legal committee belonged to bar associations that enforced traditional legal ethics rules against errant practitioners.	2
This article examines the legal ethics mind-set of the lawyers who oversaw the NAACP's early legal strategies as members of its national legal committee during the first decade of the organization's existence, between 1910–1920. Despite the vast and ever-growing literature about the NAACP, these early lawyers' involvement has received little scholarly attention.2 Most of the committee's members were "white" Protestants; one was Jewish; only one was African-American.3 Most were moderate progressives recruited from the upper rungs of the New York City bar. These lawyers lacked the charismatic quality of the NAACP's later lawyer-leaders, such as Charles Hamilton Houston and Thurgood Marshall. Nevertheless, I will argue, understanding these early legal committee members' involvement in the NAACP provides new insights into the organization's early history and its development of a particular type of public interest practice that remains key to American conceptions of how to achieve social change through law.	3
Not only has there been little research on the NAACP's first national legal committee, but no scholar, to my knowledge, has yet examined this committee's relationship to the legal ethics establishment in New York City, the place of the committee's operations. There is a literature on the NAACP's legal ethics difficulties commencing in the mid-1930s, after Charles Hamilton Houston and Thurgood Marshall assumed leadership over the organization's legal affairs.4 That literature describes Houston's and Marshall's concerns about the NAACP's vulnerability to legal ethics charges. In the 1950s and 1960s, especially after the NAACP's victory in Brown v. Board of Education, legal ethics rules provided one of the main grounds for the legal assaults some southern states mounted against the NAACP. Those attacks eventually culminated in NAACP v. Button,5 in which the U.S. Supreme Court held that the First Amendment of the U.S. Constitution protected the NAACP's litigation strategies from legal ethics censure.	4
Accounts of the NAACP's later legal ethics troubles do not explain how the lawyers who oversaw the NAACP's earliest national legal operations conceived of the relationship between the organization's activities and traditional legal ethics rules. It cannot be argued that these lawyers simply were unaware of these rules; as already noted, most of them belonged to the bar associations responsible for interpreting and enforcing legal ethics canons, and some even played leadership roles in these activities. A seeming puzzle thus provides the focus for this article: Its goal is to explore the apparent disjunction between early NAACP national legal committee members' support for the organization's nontraditional test case litigation strategies and their simultaneous involvement in bar associations that were enforcing legal ethics precepts in tension with the NAACP's work.	5
The inquiry proceeds as follows: I First briefly sketch some relevant background to the NAACP's founding. I then outline the biographies of its first national legal committee members. I next describe some of the highlights of this committee's work between 1910 and 1920. In so doing, I focus on the internal, organizational aspects of the NAACP's early legal activities, documenting the planning, policymaking, staffing, and other behind-the-scenes work in which the NAACP's early legal actors engaged. This perspective allows me to trace the development of the NAACP's nontraditional litigation methods from early experiments through the organization's first Supreme Court victories.	6
I then compare the techniques used in these early NAACP litigation campaigns with New York City bar associations' legal ethics opinions and show that these bar committees were interpreting legal ethics rules in a manner that brought them into tension with the NAACP's activities. Drawing on evidence of Charles Boston's thinking on these matters, I explore how the NAACP legal committee members reconciled the apparent disjunction between their activities and the bar associations' legal ethics interpretations.	7
I conclude that the historically and socially specific world view of these committee members allowed them to champion the NAACP's use of innovative litigation techniques while sitting on bar committees that penalized other practitioners for similar conduct. That world view was based on a universalist understanding of the public good, very different from contemporary understandings of pluralistic politics. The members of the legal committee saw their work for the NAACP as advancing this public good and thus as exempt from legal ethics constraints. They drew a distinction between their motives, which they knew to be ethically pure, involving pro bono work for others, and the motives of those from a lower strata of the bar, who were engaging in comparable activities with pecuniary, self-interested intent. This distinction was by no means clear in the language of the relevant legal ethics rules; not until almost half a century later, after southern legal attacks forced the NAACP to litigate NAACP v. Button, would this idea receive authoritative legal imprimatur. But this lack of authority did not trouble the members of the NAACP's first legal committee, I suggest, because they either sat on the bar committees that enforced the rules, as Boston did, or belonged to the elite professional circle that dominated these committees. They enjoyed, in other words, a professional and social privilege that gave them freedom to maneuver around inconvenient legal ethics norms.	8
Background and Founding Test Cases
The key to the NAACP's litigation success was its use of "test cases," the strategy by which an organization seeks to find or, if necessary, to create, a legal controversy to establish a point of law as precedent in future cases.6 Today the term invokes images of the NAACP's 1954 victory in Brown v. Board of Education,7 but in fact the strategy was central to the NAACP's objectives from its founding in 1909. The test case idea in turn had its roots in activism by civil rights campaigners and corporations stretching far back into the nineteenth century.8	9
By the late nineteenth century, African-American lawyers working in local communities had begun to experiment with the use of citizens' organizing committees to challenge racial injustice.9Plessy v. Ferguson10 was such a case. African-American lawyer Louis Andre Martinet organized a Citizens Committee to oppose Louisiana's newly enacted "separate car" law, which prohibited African-Americans from riding in train cars with whites, and called for making a "test case" to challenge the law's constitutionality.11 Martinet and his Citizens Committee carried out nationwide publicity and fund-raising. Along with a white lawyer, Albion Tourgee,12 Martinet strategized about how to stage the right facts to present the legal issues involved. In order to highlight the arbitrary nature of racial classifications,13 they chose a plaintiff who was an "octoroon" (that is, a person with one African-American great grandparent) with skin as fair as many so-called "white" passengers. They orchestrated the arrest, coordinating their plans with lawyers for the railroad who also wanted to test the statute because of the increased business costs of separate car laws. These efforts resulted in a carefully planned confrontation presenting the facts underlying Plessy v. Ferguson, which may be the first example of a civil rights organization using the "test case" terminology to describe a litigation strategy leading to the U.S. Supreme Court.14	10
By the turn of the century several civil rights organizations aspiring to national status had adopted the test case concept to describe their litigation agendas. In 1899, the Afro-American Council, controlled by civil rights accommodationist Booker T. Washington, created a legal bureau to challenge disenfranchisement provisions of the Louisiana Constitution.15 In 1904, a conference called by Washington and bankrolled by financier Andrew Carnegie called for the institution of lawsuits to secure equal accommodations in transportation and public facilities. That same year a more militant interracial civil rights organization, the Constitution League--founded by industrialist John Milholland and staffed by African-American lawyer Gilchrist Stewart, both of whom would go on to play roles in the NAACP--likewise articulated plans to sponsor test cases in the courts.	11
The most impressive effort to organize a national civil rights organization to sponsor test cases prior to the founding of the NAACP was the Niagara Movement, an African-American group organized in 1905 at a meeting in Niagara Falls, New York.16 Its founders included W. E. B. Du Bois, the brilliant but temperamental scholar and writer who would later provide intellectual leadership within the NAACP during its first several decades.17 Du Bois wanted the Niagara Movement to reflect the "very best class" of African-Americans18 and its membership roster was made up of prominent male African-American intellectuals, lawyers, and business owners. Seeking a more militant route than Washington's accommodations policies, the Niagara Movement's platform demanded civil rights in strong and unqualified terms. Its founding documents, drafted primarily by Du Bois, articulated a plan to "push test cases in the courts" challenging Jim Crow cars and other practices.19 To this end, the Niagara Movement's founders established a "legal department" to oversee nationally coordinated civil rights work.20 Active in the department were lawyers such as W. Ashbie Hawkins, who would later play a key role at the local level in early NAACP litigation campaigns.21 The Niagara Movement successfully challenged unequal accommodations in interstate carriers before the Interstate Commerce Commission and took part in other civil rights cases,22 but raising funds to finance these and other initiatives proved difficult. By 1909, the Movement had collapsed, the victim of disputes among its leaders and opposition from Booker T. Washington.23 Its demise left the idea for a national civil rights movement with a focus on a test case legal strategy very much alive but without any organization to implement it.	12
Founding the NAACP
At the same time, racial conditions in the United States were hitting a post–Civil War nadir.24 In the face of these worsening conditions, a new interracial group, the "Committee on the Status of the Negro," emerged with the idea of organizing a new national civil rights organization to fill the hole left by the Niagara Movement's collapse. This group founded the National Association for the Advancement of Colored People in 1909.	13
The story of the NAACP's founding has been well told elsewhere;25 I sketch it here to set the stage for my inquiry. Whites dominated the NAACP's founding committee, but some African-American leaders, including W. E. B. Du Bois, also took part. Most of the founding committee's white members were activists with ties to the civil rights cause through their involvement in other Progressive Era movements such as the settlement house movement, muckraking journalism, and socialism. Many came from families whose members had been active in the abolitionist movement. Oswald Garrison Villard, for example, the first chair of the NAACP's board of directors, was the grandson of abolitionist William Lloyd Garrison.26 Villard's father had made his fortune as the president of the Northern Pacific Railroad. He purchased The New York Evening Post and The Nation and installed his son as editor and owner in order to create an interesting career for him.27 NAACP President Moorfield Storey likewise came from a family with abolitionist roots, as did Mary White Ovington, a settlement house and social worker of independent family means who served at various points during the organization's first years as its secretary, acting chair, and chair.28	14
These early white leaders of the NAACP did not possess the indifferent or even hostile attitude toward the advancement of African-American civil rights that many of their Progressive Era contemporaries held. Viewing racial progress as crucial to the improvement of society, they donated significant time and energy to the NAACP, sometimes, as in the case of Ovington, making the organization their life's work. On the other hand, these white founders came from upper-class backgrounds and possessed a strong sense of social superiority. Other scholars have explored the nuances of these individuals' racial world view, a mix of race progressivism and thinking tinged by racial stereotyping.29	15
Nor were whites the only ones to hold these attitudes. Du Bois, usually a clear-sighted analyst on race issues, to some extent shared the NAACP leadership's views about the professional inferiority of African-American lawyers. Here, of course, it is difficult to sort out race prejudice from a realistic assessment of social conditions. Those conditions included two features that greatly impeded African-American lawyers. First, most elite educational opportunities remained closed to them.30 Second, the race prejudices of judges and other actors in the legal system put African-American lawyers at a disadvantage as advocates. Nevertheless, Du Bois, along with his white colleagues, sometimes perpetuated rather than objected to NAACP policies that deprived African-American lawyers of leadership roles within the organization.	16
Organizing the Structure
The NAACP's founders decided to establish national headquarters in New York City and adopted a structure ostensibly governed by a board of directors.31 Most board members participated only rarely, however, and day-to-day control rested with the national office staff. That staff included a secretary, who handled the organization's correspondence and ran the office; a field secretary, or organizer; and a publicity director, whose chief responsibility was to edit The Crisis, an NAACP-sponsored news magazine addressing topics related to African-American civil rights.	17
Du Bois served as publicity director and editor of The Crisis. The first secretary was a white woman, May Childs Nerney, a former librarian and social worker. The second was John Shillady, another white social worker. James Weldon Johnson, a distinguished African-American who had once practiced law and was a renowned songwriter and poet of the Harlem Renaissance, joined the NAACP's staff in 1916, First as its field secretary and then as acting secretary in 1918.32 Johnson recruited another African-American, Walter White, as assistant secretary in 1918. White, an accomplished author in his own right, served as an investigator and representative for the NAACP in many of its most important legal matters. William Pickens, also an African-American, took over the position of associate field secretary in 1918. In 1920, Johnson officially assumed the position of national secretary, heralding the beginning of a new era of black leadership of the organization.33	18
White was not the only staff member to become deeply enmeshed in the organization's legal work. All of the staff just discussed, with the exception of Du Bois, played roles in the organization's legal operations. Operating out of the New York City office, many of these staff members, along with other NAACP representatives, traveled extensively, especially throughout the South, to help organize chapters, resolve local disputes, and publicize the organization's legal and other work.	19
The other key feature of the NAACP's organizational structure was its system of committees, set up to handle a variety of objectives such as membership, Finances, special projects, and local branches. These committees allowed the NAACP to be active on a wide variety of fronts, even in its first years. Painting a complete picture of the organization's early work, even its early legal work, would require examining the work of many of these committees, but this study must confine itself to the activities of the NAACP's first national legal committee.34	20
The National Legal Committee
The charter of the NAACP's National Legal Committee defined it as being "of national scope, whose work shall be dealing with injustice in the courts as it affects the Negro."35 Its charge was to function in an advisory capacity to the board, reviewing and deciding on potential cases for the NAACP's involvement, helping to recruit prominent lawyers to handle these cases, and setting legal direction and policy.	21
Throughout the decade under study here, all of the lawyer members of the legal committee lived and practiced law in New York City. This is where the committee met and where it conducted its operations; truly national representation on this "national" committee would await a different organizing philosophy in later decades. Thus the legal ethics rules of New York State governed the conduct of all of the lawyers on the legal committee, both because they all held bar licenses there and because New York City provided the base for their legal activities on behalf of the NAACP. (The committee members may have been subject to the ethics rules of other states where the NAACP was conducting legal ethics campaigns, but my focus here is New York. I want to explore the apparent disjunction between the national legal committee members' activities on behalf of the NAACP and their simultaneous activities on behalf of the legal ethics establishment in their home jurisdiction.)36	22
In its earliest years, the NAACP legal committee was the main source of legal direction for the NAACP's national legal operations. Strong national staff lawyers would take over this function in a later era, but in its infancy the NAACP lacked such lawyers on its paid staff. Instead, Arthur Spingarn, the legal committee chair, provided legal oversight, assisted in a variety of ways by others on the legal committee, including William Wherry, who lent the NAACP his law firm's resources, including its associates; Charles Studin, who regularly carried out libel reviews for The Crisis and substituted for Arthur Spingarn when he was away; and Charles Boston, who took part in board meetings and served as a consultant in an important residential segregation case litigated in his home town of Baltimore.	23
Understanding the nature of these lawyers' commitment to the early NAACP is somewhat difficult, however, because, unlike most of the African-American and white nonlawyer activists involved in the NAACP in its earliest years, the members of this first national legal committee were not motivated either by first-hand experience with racial discrimination or by American radicalism. Instead, they appeared to have worked for the organization out of a commitment to moderate Progressive causes and a sense of noblesse oblige.37	24
The First Legal Committee Members
As first constituted, the NAACP legal committee was composed of five white men. Four were lawyers; one was a former university professor. The group's chair, Thomas Ewing, Jr., received his undergraduate degree from Columbia University and his law degree from Georgetown University.38 Ewing's grandfather had been a United States senator and U.S. secretary of the treasury; his father served in Congress. Ewing started his legal career working in his father's law offices and then took over the practice with his brother.39	25
Another committee member, William Wherry, Jr., served as counsel to NAACP board chair Villard's Evening Post. Wherry's Wall Street law firm had two partners and three associates, two of whom (C. Ames Brooks and Chapin Brinsmade) also did legal work for the NAACP. Educated at the University of Michigan and Columbia Law School, Wherry was a member of the exclusive Association of the Bar of the City of New York (ABCNY), which served as the primary enforcer of legal ethics rules in New York City.40 Wherry also served as chair of the committee on professional ethics of the New York State Bar Association and as chair of various committees of the New York County Lawyers' Association (NYCLA).	26
A third lawyer on the committee was Charles Anderson Boston. Boston's background was a shade less elite than that of his fellow committee members. Having been "educated privately" in Baltimore, Boston started his adult years with "somewhat distasteful experiments in the fertilizer business."41 He obtained admission to the bar after taking some classes at the University of Maryland law school and serving as a law clerk apprentice. After moving to New York, Boston joined the legal staff of a title insurance company. He later became an associate and then a partner at a firm whose two named partners had been past presidents of the ABCNY.	27
Whatever Boston may have lacked in educational credentials, he made up for in his enthusiasm for joining and leading bar organizations. Boston's prodigious organizational energy was manifest in his service on more than a dozen bar committees. In the area of legal ethics alone, Boston's involvements included: chair of the committee on professional ethics of the NYCLA from 1912 to 1932, member of the committee on professional ethics of the ABCNY, chair of the ABA standing committee on grievances, and chair of the ABA committee to supplement the canons of the legal ethics from 1924 to 1926. This only begins the list; Boston also served in many other positions and committees with local, state, and national bar associations, including as ABA president in 1931–32 and NYCLA president in 1932–34.42	28
Boston pointed to his involvement in the New York Society for Ethical Culture as an important influence on his thinking about legal ethics issues.43 That organization, home to many progressives attracted to nonsectarian religious humanism, was in the early 1900s involved in a number of reform causes, including the settlement house movement. Its leaders had signed the 1909 petition calling for the NAACP's creation, and this connection may well have played a role in Boston's joining the NAACP's legal committee.44	29
The fourth lawyer on the committee, Wilson Marcy Powell, was also active in moderate reform causes. Powell, a Harvard-educated lawyer and Quaker, served as a trustee of various banks and universities and was involved in a variety of charitable causes in New York, including the Prison Association, the Colored Orphan Asylum, and the Association for the Benefit of Colored Children.45	30
The only nonlawyer member of the national legal committee in 1912 was Joel Spingarn. Unlike the other, mostly Protestant, members, Joel Spingarn and his lawyer brother, Arthur, who became chair of the legal committee in 1914, were Jewish. The Spingarn family had emigrated from Austria to New York City in the 1840s.46 Their father had prospered in the wholesale tobacco trade (before the Civil War, it might be noted), and this family wealth freed both brothers from the need to earn a living. Both brothers sought to combine a life of ideas and study with social justice activism and explicitly linked their lifelong involvements with the NAACP to their perception of their own heritage as members of a racial minority.47	31
Joel Spingarn began his career as a reputedly brilliant English professor at Columbia University but resigned from this position to protest the unfair treatment of a colleague and never again held a paying job. His service to the NAACP included holding the positions of chair of the board of directors from 1914 to 1919, treasurer from 1919 to 1930, and president from 1930 to 1939.48 As his biographer describes, Joel Spingarn's political philosophy was one of economic liberalism. He had strong reformist impulses in the areas of civil liberties, race relations, and foreign affairs but was not interested in a fundamental redistribution of wealth and power.49 His philosophy of economic liberalism mirrored the NAACP's underlying vision; this outlook remained deeply ingrained in the organization's vision long into its future, despite the more radical economic analysis advocated by figures such as Charles Hamilton Houston and W. E. B. Du Bois.50	32
An Expanded Committee
In 1913, the national legal committee merged with the legal advisory board of the New York Vigilance Committee, which functioned as the local NAACP branch in New York City. Arthur Spingarn joined the legal committee at this point and became its chair, a position he retained until 1940. Arthur Spingarn had received his A.B., M.A., and LL.B. from Columbia University and belonged to both the ABCNY and NYCLA.51 He maintained a successful Wall Street trusts and estates law practice, but his correspondence exhibits none of the worry about losing opportunities for paid legal work that other lawyers who were donating significant time to the NAACP displayed. Spingarn's family wealth allowed him the luxury of being a true "gentleman" lawyer, balancing his legal practice with a variety of artistic and pro bono interests.52	33
Spingarn's close colleague, Charles Studin, an 1897 Yale Law School graduate, was another member of the legal advisory board of the New York Vigilance Committee who transferred to the national legal committee in 1914. Like Spingarn, Studin was known as a close friend of writers and artists.53 He played a dedicated but less visible role within the legal committee. Valued within the committee for his astute legal judgment, Studin performed behind-the-scenes advisory work and libel screening for The Crisis and filled in as chair of the legal committee when Spingarn served as a captain in the Sanitation Corps during the First World War.	34
The newly constituted legal committee had one African-American member, Deborcey Macon Webster.54 Webster was unusual among African-American lawyers during the period in that he, like most of his fellow legal committee members who were white, had a Wall Street practice.55 His name appears as counsel in several divorce and estate cases,56 and he reputedly counted among his clients Lord and Taylor and Tiffany and Company.57	35
The historical record on Webster is scant. Born in 1868, Webster attended Columbia Law School but did not graduate from there; he may have finished his degree elsewhere, or, more likely, applied for bar membership after apprenticing with a practitioner. By the early 1890s Webster was practicing law in New York City. In 1900, he joined in efforts to seek legal redress from the police following a race riot in New York City. In 1911, he accompanied Booker T. Washington to court after Washington was assaulted for allegedly propositioning a white woman.58 That same year, he joined the staff of the state attorney general's office.59 Webster does not appear to have played a prominent role in litigating civil rights cases; he probably spent most of his energies on his paying law practice.	36
Many of the lawyers who were pioneering creative public impact litigation techniques in civil rights cases at the time were African-Americans, but none of them was on the NAACP legal committee. These lawyers included not only prominent activists such as McGhee and Hawkins, formerly of the Niagara Movement, but also African-Americans who were staff members at the NAACP's New York offices, such as C. Ames Brooks, an associate at William Wherry's law firm, who served for a short time as "general attorney" for the NAACP in its national office.60 Another prominent African-American lawyer and civil rights activist, Gilchrist Stewart, headed the New York City Vigilance Committee but was not among the lawyers transferred to the national committee.61 Stewart, an immigration lawyer in New York City, had been employed as an organizer and lawyer for the Constitution League, with funding provided by John Milholland, the wealthy manufacturer who later served on the NAACP's board of directors.62 Stewart had also been allied with the Niagara Movement and was active in progressive Republican politics in New York City.63	37
The reasons for Stewart's exclusion from the newly constituted NAACP legal committee are unclear.64 What is clear is that Stewart did not receive the political backing needed to obtain a seat on the national committee. Du Bois, when consulted about Stewart's status, thought that, while Stewart was "an excellent man," the organization would get "the best results" if he were "employed by piece work."65 The resolution of the NAACP Board that authorized the merger of the New York and national committees thus provided "that the New York Vigilance Committee be completely reorganized with a new body of officers . . . and . . . that the legal work formerly handled by the Vigilance Committee be referred to the National office."66	38
Stewart's removal from the legal operation he had helped build left him bitter. From his perspective, the issue concerned philosophies of legal representation. In an angry letter to Joel Spingarn, Stewart argued, "for work among colored people, it is necessary that colored agencies should be in control."67 Stewart asserted the illegitimacy of providing only token representation of African-Americans on a committee seeking to represent African-American causes. The moral authority of Stewart's complaint would eventually hold sway within the NAACP,68 but at the time Stewart stood alone, not even supported by Du Bois.	39
In short, the roster of the expanded national legal committee made it clear that the national NAACP was not seeking African-American civil rights lawyer-activists to direct its legal strategy. Instead, its legal committee members' credentials served to signal the elite professional status of the NAACP's legal representatives. Race, along with ancestry, social and economic class, educational credentials, and professional success (as measured by a corporate client base and a Wall Street address), was a part of this symbolic code. At this point in its history the NAACP sought not to challenge that code but to use it to gain the most traditional legitimacy possible for its nontraditional plans.	40
The NAACP's Early Legal Work
Scholars have written about the NAACP's first Supreme Court cases but have not focused on the internal, institutional aspects of the NAACP's early national legal work. I take that perspective here, seeking to paint a historical picture that is not disembodied from the actors whose activities produced "the law." This perspective allows me to trace the connections between the NAACP's early legal activities and its legal committee members' involvement with legal ethics initiatives seemingly at odds with the NAACP's activities.	41
Early Experiments
The national legal committee of 1914 grew out of the merger between a smaller national committee, composed of five staid Wall Street practitioners, and the more vibrant and diverse legal advisory board of the New York Vigilance Committee. It was, not surprisingly, the New York committee that had pioneered the NAACP's earliest test case litigation experiments. That committee, as Joel Spingarn explained, had found itself "under a peculiar difficulty, because, unlike the national office, it has no violent outrages confronting it," but it recognized that African-Americans "are confronted every day of their lives with the most galling conditions; . . . subjected to insult . . . refused service and courteous treatment . . . even in places where they are guaranteed absolute equality with their white brethren by legal statutes." The committee thus defined its goal as "to make an organized attack on the whole system of discrimination in places of public accommodation."69	42
To this end, the committee prosecuted and won under New York civil rights law a case against a Manhattan theater that had refused to allow a black man to occupy an orchestra seat.70 With this victory in hand, the committee undertook a more ambitious plan: to stage a series of encounters between city theaters and mixed groups of black and white patrons. These groups of "testers" met on a designated evening and fanned out to visit a list of city theaters to test compliance with New York law prohibiting discrimination in places of public accommodation.71 The committee promptly filed suit against theaters that barred the racially mixed parties from being seated.	43
Inspired by these experiences, Joel Spingarn wrote to his brother Arthur to propose that Joel "or some other white man who has the time and inclination shall go down to Oklahoma, and with a reputable and trustworthy colored man tour the state, for the purpose of showing that the white man can get sleeping and dining accommodations on the railroads and the black man cannot." He envisioned taking an investigator with a camera along to document the conditions on trains for African-American travelers and holding an NAACP rally at the end of the railroad line to disclose the results of the testing and generate publicity for a lawsuit. Joel suggested that his brother should assemble the "best legal talent" available to suggest the details for such a test case strategy "indicating exactly what evidence must be obtained and what pitfalls must be avoided."72	44
To his disappointment, Spingarn's plan did not produce the results he expected. Joel and an African-American traveling companion, Scott Brown, took a trip, but Brown was not denied sleeping car accommodations, so they arrived at the designated meeting site without the sought-for evidence.73 The pair eventually did gather the evidence for a test case but that case was dismissed when Spingarn enlisted in the Army after the outbreak of the First World War.74	45
These test case experiments were not novel--they were, after all, elaborations on the strategy pioneered two decades before in Plessy. Their significance instead was that they instilled in the New York committee members an awareness of the power of test case litigation as a multifaceted strategy to achieve publicity, organization building, and litigation goals.	46
In the meantime, the five-person national legal committee had its own success. It won its first case in the U.S. Supreme Court, Guinn v. United States.75Guinn invalidated the use of a so-called "grandfather clause," which barred persons who could not pass a difficult literacy test from voting unless their ancestors were entitled to vote before the Civil War. NAACP President Moorfield Storey, a Boston corporate lawyer with impeccable professional credentials who represented the NAACP in most of its early Supreme Court cases,76 had filed an amicus brief for the NAACP in the Court to great acclaim. The results, at a time when civil rights victories were few and far between, gave the NAACP increased visibility and stature. The victory also proved enormously helpful in fund-raising and membership growth. Guinn, in short, launched the NAACP as the leading national civil rights organization of the period, with which all other aspiring civil rights activists would have to contend.	47
Refining the Strategy
The 1913 merger infused the NAACP's legal operations with the best lessons learned by both its predecessor committees. From the New York committee the national group gained experience in decisive, creative direct action; from the first players on the national committee it learned the immense payoffs of achieving Supreme Court victories. It was clear, however, that a national committee would have to shed some of the philosophies that had guided these earlier efforts. A national committee, for example, could not aspire to provide representation in "all cases of outrage, discrimination or injustice because of race or color," as the New York committee had.77 Nor, as we have seen, was the national committee interested in providing legal representation of African-Americans by African-Americans, as Stewart, the original African-American leader of the New York group, had intended. Instead, the national committee adopted stringent policies about both these matters that would shape the organization's direction for years to come.	48
It had been clear from the outset that, at the national level at least, the NAACP's small budget would permit it to sponsor only a handful of cases each year. The national committee had thus adopted a policy at its founding that it would accept only cases presenting civil right issues; all other cases would be referred to legal-aid bureaus.78 In 1916, the committee further restricted its criteria, resolving that it not only would limit its involvement to cases "which show actual discrimination because of color" but would choose from among such cases only those that "test broad principles, such as the grandfather clause, Louisville and St. Louis segregation cases, and the Jim Crow car case."79 As Spingarn explained, "[t]he pressing problems that present themselves continually to our Association necessitate our restricting our work to establishing precedents and testing new laws."80	49
This policy decision, mandated by the NAACP's severe resource limitations, laid the foundation for the NAACP's public impact litigation strategy. The idea of sponsoring carefully chosen cases with hopes of reaching the U.S. Supreme Court would be refined in the following decades, but by 1914 the legal committee had already articulated the core of this strategy.	50
Funding the high profile litigation that the NAACP envisioned proved a huge drain on the organization's budget. Nevertheless, the NAACP's leadership firmly supported this resource allocation decision from the outset. As Mary White Ovington explained, the NAACP's leadership decided that a "legal accomplishment now will mean many thousands more members than if all the thought and power of the office goes into the [membership] drive itself."81 This decision to focus on producing legal results rather than on building membership proved well considered. As the organization repeatedly learned during its first decade, high profile legal campaigns leading to Supreme Court victories were the NAACP's best tool for raising money and gaining members. Of course, this strategy also created the potential for conflicts between the NAACP's organization-building goals and its role as counsel for particular plaintiffs in civil rights cases.	51
Race within the NAACP
Another aspect of the NAACP's early policy on case representation reflected its enforcement of a color line within its own operations. Just as the racial composition of the legal committee reflected the NAACP's elitism, the legal committee's policy on which outside lawyers it would approach about handling NAACP cases embodied a two-tiered system. Indeed, the board stated such a policy explicitly, resolving in 1916 that the high profile national test cases it wanted to sponsor should be handled by the most elite lawyers available--by definition, white lawyers at the top of the bar's hierarchy. Local New York City cases would be "referred to colored lawyers who are willing to take them on contingency."82	52
Another racially charged aspect of the committee's policies on case representation involved the matter of money. Here the committee did not have an explicit race-based policy, but a preference for lawyers who could handle cases pro bono, which had the impact of disadvantaging African-American attorneys. Although the NAACP was willing to enter into representation arrangements with local counsel that involved paying fees (and, indeed, often did so), at bottom it completely trusted only those lawyers willing to donate their legal services. Such caution with the organization's treasury was prudent. In the words of Field Secretary Pickens, it was necessary	53
to block the way against the grafters and legal sharks who wanted to prey upon the dire needs of the client and the treasury of the Association. And those who wanted to exploit the victim and raid the treasury were sometimes white and sometimes black. Arthur Spingarn was the power behind the scenes in most of these cases, and was giving of himself in defending the meager resources of the Association.83 Spingarn can hardly be faulted for his efforts in negotiating with lawyers about their fees; his correspondence files amply reveal his diligence at this thankless work. But the NAACP's wariness about compensating for legal services further widened the racial division in the lawyers it chose to handle cases, since few African-American lawyers had the financial security to handle protracted legal work without pay.
Still another difficult task facing the legal committee involved screening cases for NAACP participation. To select the cases with the greatest national potential, the legal committee had to follow promising legal developments throughout the country. Not only did it have to monitor pending litigation in the lower courts, but it also had to stay abreast of legislative initiatives that might result in new laws for constitutional challenge and assess the relative merits of potential litigation forums. The committee soon realized that this work required full-time attention, and the board agreed at the end of 1913 to hire a full-time attorney to staff the national office.84	54
The First Staff Lawyer
The board's choice for the position was a young white lawyer named Chapin Brinsmade. At first glance, it is not obvious what commended this particular attorney to the board. He was young--twenty-eight years old--and inexperienced, having graduated from law school in 1910. Nor had he distinguished himself in prior work for the NAACP or the cause of civil rights in general, as had the far more experienced African-American lawyer Gilchrist Stewart who was handling the national and New York offices' legal work on a piecework basis.	55
What Brinsmade did have going for him in winning the coveted staff lawyer position were his ties to the board and the legal committee. Brinsmade was a junior associate at Wherry's law firm; that firm did the legal work for board chair Villard's publications. In addition, Brinsmade was a graduate of Harvard College and Harvard Law School. Like many of the members of the legal committee, Brinsmade's family traced its lineage in America back to the 1600s.85	56
Put to work under the general direction of the legal committee and the specific direction of Arthur Spingarn, Brinsmade displayed enormous energy and enthusiasm, which in some ways made up for his lack of experience. Much of his activity, however, drew the NAACP away from its carefully defined litigation goals.86 Brinsmade's reports reflect a flurry of efforts in many directions, from returning a woman's repossessed furniture, probing allegedly fraudulent "Back to Africa" schemes, and planning an attack on bankers' discriminatory lending practices in Harlem, to investigating possible test cases for a Supreme Court challenge to residential segregation ordinances being enacted around the country and to a Florida law prohibiting white teachers from teaching in black schools.87 Brinsmade also wanted to expand the organization's legal work to problems that had not produced justiciable cases, urging the NAACP to establish a mortgage company for African-Americans, investigating companies' methods of writing life insurance, and approaching public service commissions to lobby against discriminatory public transportation policies. In January 1914, Brinsmade reported on eleven active cases to the board; by the end of the year his reports began to take up so much of the directors' meetings that there was not time to finish them.	57
As Brinsmade soon began to complain, however, the number of cases in which the NAACP could become involved was huge, and each one required careful investigation and analysis.88 It quickly became evident that one person could not carry out all of these tasks, even working full time at a frantic pace. The Association's first secretary, May Childs Nerney, began to assist Brinsmade with investigations and briefings to the legal committee. She and other members of the NAACP staff and leadership most involved in building its legal agenda (especially Joel and Arthur Spingarn and, later, assistant secretary Walter White) became deeply involved in this work.	58
Nontraditional Approaches
Having a nontraditional legal agenda, Brinsmade and his NAACP colleagues conducted themselves in nontraditional ways. For example, in carrying out on-site investigations of situations that might merit the NAACP's involvement, Brinsmade and other NAACP representatives frequently traveled around the country. This in itself did not necessarily deviate from a traditional lawyer's role. But Brinsmade sometimes combined or followed up such investigative tours with large meetings in local communities to generate enthusiasm and raise memberships and funds to support the NAACP's litigation. Other NAACP representatives also appeared before audiences to explain potential litigation or litigation already underway and to ask for financial and other support. Arthur Spingarn was in frequent demand to speak at meetings to explain the organization's legal work and raise funds and new members; Joel Spingarn reported completing a sixteen-city tour, making as many as three stops a day, in 1915, and enlisted his brother Arthur to fill in for him at meetings he could not attend.89 Even Storey appeared at public meetings on occasion.90 Appearing before audiences to promote litigation contravened then-prevailing interpretations of legal ethics strictures, but that did not deter the NAACP's legal representatives from this work.	59
In one of his first reports to the board, Brinsmade proudly described another nontraditional practice in which he engaged. In its efforts to monitor civil rights developments across the country, the NAACP had enlisted a clipping service to scan local newspapers for reports of incidents raising potential civil rights violations. Seeking to make the most of this information, Brinsmade assigned Nerney the task of locating addresses and writing letters to the victims named in the newspaper reports to offer the NAACP's services for free in pursuing a lawsuit.91 This practice plainly violated legal ethics rules prohibiting the solicitation of potential clients. In this instance, a more experienced legal mind within the NAACP appears to have intervened. In a cryptic memorandum to Nerney, Spingarn reminded her of meetings he had called on the need to let interested plaintiffs or their counsel initiate contact with the NAACP.92	60
Thus, one of the tasks Arthur Spingarn assumed as chair of the legal committee was to keep an eye on its exuberant but inexperienced staff attorney. Another was to monitor the activities of civil rights lawyers not affiliated with the NAACP. This was an important job, since civil rights precedents set in litigation the NAACP did not control could greatly affect the NAACP's litigation strategy. The NAACP did not want to shut down all competing civil rights litigation, however; such local experiments were a source of new ideas that the NAACP might appropriate for its national campaigns. On the other hand, the NAACP wanted sufficient involvement to allow it to take credit for as many civil rights victories as possible. Even more important, the NAACP wanted to be able to halt local efforts that appeared headed for disaster, since adverse decisions could damage the rapidly developing body of civil rights case law. Spingarn's papers and other legal files are rife with correspondence in which he tried to play this difficult role in exerting the NAACP's influence over nonaffiliated lawyers.	61
Spingarn sometimes was successful in these efforts, but sometimes he was not. He failed in McCabe v. Atchison, Topeka and Santa Fe Railway Company, for example.93 This case arose in Oklahoma after that state enacted legislation mandating separate seating for black and white passengers but allowing railway companies to provide sleeping and dining facilities for one race only if limited demand so warranted. Arthur Spingarn learned that a group of local African-American lawyers planned to challenge the statute and wrote to them asking that they "take no action" in the case because the NAACP wanted to prosecute it.94 The local lawyers failed to heed Spingarn's request and filed a complaint as soon as the statute took effect. The lower courts rejected the challenge, ruling both that the statute was constitutional and that the plaintiffs lacked standing because they had not personally suffered discrimination under the new statute.95 At this point, the local lawyers, William Henry Harrison, Edwin O. Tyler, and Ethelbert T. Barbour, approached the NAACP for assistance.	62
After evaluating the case, the national legal committee decided that it should accept this invitation to take over the case.96 The NAACP paid for the costs of printing the record and approached NAACP President Moorfield Storey about preparing the brief and arguing the case before the U.S. Supreme Court. Storey balked, however, complaining that the case had not been "properly drawn" because no one had yet been denied accommodations so as to present a case of personal injury.97 Lacking its promised Supreme Court advocate, the NAACP had no choice but to revoke its offer of representation.98 Plaintiffs' original counsel, Harrison, with assistance from Tyler and Barbour, argued the case before the Court.	63
The decision in McCabe proved Storey's assessment technically correct: the Supreme Court refused to reverse the lower court on the grounds that the plaintiffs had failed to show sufficient personal injury.99 Plaintiffs' counsel received criticism in many quarters for mishandling the lawsuit--including from Du Bois, who castigated McCabe's lawyers in The Crisis for failing to recognize their lack of experience imposed by the "color line in the legal profession."100	64
The other effect of McCabe was, somewhat ironically, to highlight the need to "stage" the facts for test case litigation to ensure the requisite showing of personal standing.101 The national legal committee instantly took this aspect of McCabe to heart; it was right after the Supreme Court issued its ruling in McCabe that Joel Spingarn urged Arthur to assemble the best legal talent available to test the enforcement of the separate cars law in Oklahoma. McCabe thus further reinforced the NAACP's focus on carefully controlling the scenario presented to the courts. It found the right circumstances for such a test case not long afterwards, in a plan that culminated in its second major U.S. Supreme Court victory of the decade, Buchanan v. Warley.102	65
Buchanan v. Warley
Buchanan v. Warley declared unconstitutional the residential segregation ordinances directed at African-Americans that southern and border states began to enact in the 1910s.103 As was often the case, an African-American lawyer working at the local level had done the initial work in formulating the arguments to challenge these residential segregation ordinances. That lawyer was William Ashbie Hawkins, formerly of the Niagara Movement, who subsequently built an NAACP branch in Baltimore.104 Hawkins had briefly attended the University of Maryland law school but had been forced out for race-related reasons. He graduated from Howard University law school in 1892 and became the ninth African-American lawyer admitted to the Maryland state bar. Hawkins formed a law partnership with another African-American attorney in Baltimore, George W. F. McMechan, a Yale Law School graduate, and the two used their ties to national African-American fraternal organizations to build a successful practice. At the same time Hawkins pursued several important civil rights cases in Baltimore, including one that unsuccessfully challenged the constitutionality of a private mechanical arts school's exclusion of black youth105 and his successful challenge to Baltimore's residential segregation ordinance in State v. Gurry.106	66
In an article he wrote for The Crisis, Hawkins told the story of his involvement in Gurry. Shifts in Baltimore's residential patterns had brought African-Americans into previously white neighborhoods. This gave rise to some racial tension, including vandalism and other minor incidents of violence. But a legislative initiative got underway only after the African-American law partner of Hawkins, George W. F. McMechen, and his wife, a school teacher, further tested the waters by moving into prime real estate in a previously all-white neighborhood. In a furor, the city council hastily drafted a residential segregation ordinance, which it sought to fit within the Plessy framework by prohibiting African-Americans from moving into residences in predominately white blocks and whites from moving into homes in blocks that had become predominately African-American. The city asserted as its state interest its right to exercise its police powers to preserve peace and prevent racial conflict. Hawkins filed and quickly won "a test case" to challenge the sloppily drafted ordinance.107 His victory prompted the city to enact another ordinance in 1911, which he again successfully challenged in 1913.108	67
The NAACP national legal committee became interested in carrying a similar challenge to the U.S. Supreme Court. In its 1913 Annual Report the committee reported on passage of a segregation ordinance in Winston-Salem, North Carolina, and explained that it had "promptly offered our services and urged that this be made a test case," but the prospective plaintiffs, two African-American brothers who had purchased an option to acquire real estate, had been afraid to press their suit because of intense local prejudice.109	68
The NAACP soon found more suitable conditions for creating a test case in Louisville, Kentucky. The Louisville City Council had enacted a segregation ordinance in 1914 that purported to "prevent conflict and ill-feeling between the white and colored races" by requiring that whites and blacks live on separate blocks. As in Baltimore, the ordinance attempted to appear "race neutral" under the separate but equal doctrine of Plessy. African-Americans in Louisville had been organizing unsuccessfully to defeat the ordinance legislatively. The NAACP saw the opportunity to create a local chapter that could challenge the law in the courts. Soon after the ordinance's passage, the NAACP's national organizing staff began working to form an NAACP branch in the city. National staffers May Childs Nerney and William Pickens, along with board chair Joel Spingarn, visited the city to grant official status to a local chapter.	69
Not long afterward, staff attorney Brinsmade traveled to Louisville and began to organize the test case. He started his visit with a mass meeting where he spoke to raise money to fund a legal fight against the ordinance.110 Brinsmade's other chief task in Louisville was to organize the cast of players necessary to stage a successful test case. Brinsmade achieved quick success in this goal: one of the new local branch leaders, an African-American named William Warley, agreed to be the plaintiff (an act of courage that would later cost Warley his employment at the local post office).111	70
The strategy for the test case soon emerged. The plan was that Warley would purchase a housing lot located in a predominantly white block from Charles Buchanan, a white real estate dealer who opposed the ordinance because of the impediments it posed to his business. The NAACP's lawyers carefully drafted the wording of this contract so that its validity was contingent on Warley's ability to reside at the property, thus squarely presenting the legal principle at issue for determination. A lawyer representing Buchanan--but paid by the NAACP--Filed suit to challenge the ordinance. Warley in turn requested the city attorney's office to represent him. It agreed to do so and argued that Warley did not owe money to Buchanan because the contract was invalid under the ordinance, which was a constitutional exercise of the city's police powers.	71
The case traveled through the Kentucky court system, which upheld the ordinance's validity as expected. As soon as the state's highest court released its decision, legal committee chair Arthur Spingarn announced that Moorfield Storey would represent the NAACP in an appeal to the U.S. Supreme Court.112 Storey's brief for the national office expanded on Hawkins's winning argument in the Baltimore case, emphasizing that the Louisville legislation constituted an undue interference with property rights--specifically, with the rights of the white seller Buchanan, who had been deprived of the ability to transfer his property as he wished. After two rounds of oral argument, Storey won his case, in an apparently unanimous decision. The Court reasoned that, while prohibiting African-Americans from sitting in white railroad cars did not pose an undue infringement on the personal rights of this class of citizens, depriving white persons the right to dispose of their property as they wished created a deprivation of a higher, unconstitutional magnitude.113	72
The city of Louisville had argued that the case before the Supreme Court should be dismissed for lack of standing. The city, at this point no longer pursuing Warley's asserted interests, observed that the posture of the case presented strong evidence of collusion between the purported plaintiff and the defendant. Storey had given some attention to these potential standing problems in preparing his arguments but simply gave them short shrift before the Court.114 This strategy appeared to have the desired results as measured by the Court's published opinion, which failed to make any mention of the city's allegations.	73
Although the decision in Buchanan v. Warley appeared to be unanimous, constitutional scholars have uncovered an unpublished dissent. In it, Justice Holmes maintained that he would have thrown the case out without reaching the merits, as the city had urged. Holmes wrote, "I cannot but feel a doubt whether the suit should be entertained without some evidence that it is not a manufactured case."115	74
Buchanan v. Warley had all the elements of the NAACP's early test case strategy: national office control, invocation of the patrician Moorfield Storey to gain legitimacy before the high court, and, most tellingly, the engineering of a factual situation that presented the legal issues at stake in the best light possible. Scholars still debate the effectiveness of Buchanan v. Warley in stemming residential segregation in the United States.116 Whatever its practical significance, the decision was a symbolic watershed, showing that civil rights progress could be made through the courts.117 It was also important as a motivator, producing many new members for the NAACP and reinforcing the organization's commitment to a test case litigation strategy.	75
A War Intervenes
The First World War slowed the NAACP's ability to file new test cases to follow up on its victory in Buchanan. The organization's legal fund was depleted and fund-raising proved difficult.118 The war diffused the legal committee's focus in other ways as well: its hardworking chair, Arthur Spingarn, took a two-year leave to serve in the Army Sanitation Corps (the precursor to the Red Cross) and Joel Spingarn left for military service.119 The legal committee's activities tapered off even more when, ostensibly as a means of "retrenching financially due to the war," the board decided to give up its new "legal department" and Brinsmade as its staff.120 NAACP Secretary Nerney complained bitterly that the lack of legal resources caused "many splendid test cases to slip through [our] Fingers" and called for engaging a "First class lawyer" who could spend a good deal of time "in the field" to coordinate the legal work of the branches.121 But no such staff lawyer would join the office again until the 1930s.	76
Instead, Brinsmade's duties were spread among the remaining staff and leaders. Nerney took over many of Brinsmade's responsibilities, including traveling to conduct case investigations, but resigned after squabbling with Du Bois, who denounced her for harboring race prejudice. In 1918, after he was hired as assistant secretary, Walter White took over many of the duties Brinsmade and Nerney had performed.122 White, a very fair-skinned African-American, traveled throughout the South "passing" as a white man in order to investigate lynchings and other civil rights violations, often placing himself at great personal risk. The NAACP thus continued to have a full legal docket assisting in cases in which defendants were treated unfairly because of race. But its efforts in proactively engineering test litigation waned until the start of new campaigns in the mid-1920s, which are well described in the existing literature on the NAACP.	77
The Bar Committees
As we have seen, the NAACP was, in its earliest years, pursuing ambitious litigation strategies that differed markedly from traditional notions about how the litigation process should work. Whereas traditional notions assumed that legal disputes arose separate from and prior to the initiation of litigation, the NAACP's test case strategy depended on staging the best possible facts for the purpose of creating litigation. Whereas traditional models envisioned lawyers sitting in their offices waiting for clients to bring legal matters to their attention (or, more realistically, bringing in business by networking within circles of acquaintances), the NAACP wanted to widely proselytize new causes of action in order to reach potential plaintiffs who were strangers to the legal world and would not otherwise have been aware of their rights. Finally, whereas traditional models viewed litigation as resulting in judgments that would primarily affect the rights of parties before the court in the present and short-term future, the NAACP designed its litigation to try to affect the legal rights of all African-Americans, far into the future.	78
Traditional notions of litigation were embedded in the prevailing canons of legal ethics and related law. Some of the assumptions were apparent in the silences in the canons, the topics they did not address. The canons, for example, reflected almost no recognition that a lawyer's handling of a legal matter might have broad effects far into the future on persons or interests other than the immediate parties. The canons also failed to discuss the difficulties of reconciling competing interests among client groups. Other traditional assumptions were embedded in legal ethics prohibitions, including rules that barred lawyers from engaging in practices on which the NAACP's litigation model depended. These rules could have caused enormous difficulties for the NAACP's nontraditional litigation experiments. But its national legal committee did not balk at this problem because, I argue, its members had sufficient power within the local legal ethics enforcement community to adopt their own alternative interpretation of these rules without fear of censure.	79
Ethics Enforcement
The legal ethics rules applying to lawyers practicing in New York City in 1910 had their origins in the national model canons of legal ethics the ABA adopted in 1908.123 The New York State Bar Association adopted these canons almost verbatim in 1909. In New York City, two bar associations vied for preeminence in enforcing and interpreting legal ethics rules: the old-line Association of the Bar of the City of New York, founded in 1870, and the newly organized New York County Lawyers' Association, established in 1908.	80
The bar elite had organized the ABCNY in response to the Tammany Hall scandals that had implicated prominent corporate attorneys working for powerful clients in political corruption schemes.124 The ABCNY defined its mission as catering to the uppermost strata of the bar; it had correspondingly exclusive, exclusionary membership policies. The NYCLA, in contrast, had an open membership policy. It had been founded for the same purposes of improving the profession as had the ABCNY but sought memberships from any of the 12,000 members of the New York County bar practicing in the county. Four years after its founding, the NYCLA had a membership of 2,900, already surpassing that of the ABCNY, which had only 2,142 members in 1912.125	81
The two organizations split the jobs of enforcing and interpreting the state's 1909 canons of legal ethics. The ABCNY had a firm monopoly on enforcement. At its founding, the ABCNY had established grievance committees to hear complaints against its members. In the 1880s, these committees began to hear such complaints against all New York City lawyers, not only the ABCNY's members, and the New York courts granted de facto recognition to the ABCNY's jurisdiction. The ABCNY thus accepted and investigated complaints from any source about any lawyer practicing in New York City.126 When it encountered cases it thought were well founded, it held internal hearings and recommended discipline. Although it had no formal authority to institute such discipline, it petitioned the New York courts to act and provided them with a member of its grievance committee to prosecute the charges.127	82
Even with committee members as volunteer prosecutors, the ABCNY's legal ethics enforcement operation was a significant drain on the organization's finances, but one its wealthy membership was willing to support.128 By 1906, the grievance committee had hired a full-time attorney to oversee its ethics enforcement function; by 1912, it had expanded its staff to five full-time attorneys and several support staff, costing it $16,000 annually, approximately one quarter of its yearly budget.129	83
At its founding, the NYCLA had aspirations of building a disciplinary operation much like the ABCNY's.130 The newer, poorer organization quickly realized, however, that it could not penetrate the ABCNY's monopoly in this area. It decided instead to devote most of its energies to "prevention rather than correction and penalizing."131 To this end, the NYCLA established a committee to draft advisory answers to ethics questions submitted to it anonymously by members of the bar. Charles Boston chaired this NYCLA committee.	84
In theory, the difference in the membership bases of the ABCNY and the NYCLA should have created significant differences in their legal ethics ideologies. Especially on the issues of solicitation and advertising, the less advantaged membership of the NYCLA could have been expected to support policies that permitted affirmative efforts to attract strangers as clients. Indeed, NYCLA members did engage in some grumbling on these matters. But in their formal, publicly issued opinions, the two organizations had remarkably similar approaches to all legal ethics questions--a fact probably attributable to the organizations' overlapping memberships, ABCNY members' dominance in NYCLA leadership positions, and NYCLA members' inability to arrive at sufficient consensus to give institutional voice to views dissenting from the ABCNY.	85
Thus, in their formal interpretations of the canons, both the ABCNY and the NYCLA held restrictive views about the scope of permissible practices on matters such as "stirring up" litigation, advertising, and solicitation. And both organizations rendered legal ethics opinions that might have posed difficulties for the NAACP.	86
Problematic Precedents
The most problematic canon for the NAACP's litigation strategy was Canon 28, entitled "Stirring Up Litigation." Canon 28 defined it as "unprofessional for a lawyer to volunteer advice to bring a lawsuit, except in rare cases where ties of blood, relationship or trust make it his duty to do so."132 Canon 28 had common law and criminal counterparts. These rules fell generally under the rubric of statutes prohibiting "barratry"133 and took many forms, all aimed at prohibiting lawyers from "inciting" or encouraging litigation.	87
Other common law doctrines potentially troubling to the NAACP included prohibitions against "maintenance" or "champerty," which were conceived of as offenses involving the "intermeddling" by a third party in a lawsuit by supporting or assisting a litigant in pursuing a legal claim.134 Still other legal ethics norms derived from the common law included prohibitions against intermediaries becoming involved in legal relationships and prohibitions against nonlawyers practicing law. These doctrines were not yet codified in the 1908 canons but were well accepted and cited as grounds for attorney discipline.	88
Such prohibitions against "stirring up" litigation, volunteering advice to bring a lawsuit, or acting as a third-party intermediary between a client and lawyer could have caused problems for the NAACP's test case litigation techniques. For example, organizing pairs of testers to descend on New York City's theaters to test compliance with antidiscrimination laws certainly gave rise to litigation where none would have existed otherwise. Similarly, the NAACP "created" a case when it sought out plaintiffs, planned a transaction, and then coordinated with the opposing side to orchestrate the facts leading to Buchanan v. Warley, as Holmes's unpublished dissent in that case complained. In these and many other instances, the NAACP's legal representatives conceived of and championed a dispute in order to bring about a lawsuit, conduct that at least technically ran afoul of rules prohibiting the encouragement or inciting of litigation. Similarly, the NAACP's national office's direction of lawyers in the field could have been viewed as intermeddling by a third party.	89
Canon 28 and related doctrines were not the only rules that could have caused problems for the NAACP's litigation experiments. Another was Canon 27, which sharply restricted lawyers' advertising by providing that "solicitation of business by circulars or advertisements, or by personal communications, or interview, not warranted by personal relations, is unprofessional." This rule could have posed problems for the NAACP's many activities aimed at soliciting plaintiffs for its cases, including not only Brinsmade's and Nerney's practice of writing to strangers to offer the NAACP's legal services, but also NAACP legal representatives' practice of recruiting plaintiffs for test cases and speaking before groups to urge involvement with pending or anticipated litigation.	90
The ethics committees of both the ABCNY and the NYCLA had considered cases arising under Canons 27 and 28 and related rules and had strictly interpreted these ethical strictures. Such cases ran the gamut from straightforward "ambulance chaser" cases135 to ones presenting scenarios analogous to the activities of the NAACP. One such case involved the ABCNY's successful initiation of disciplinary proceedings against a lawyer who had advertised his services in part as follows: "Samuel E. Neuman, a white lawyer, who is a colored man's friend . . . accident, criminal, and matrimonial actions a specialty. . . ."	91
The ABCNY had Mr. Neuman suspended from practice for this advertisement.136 In its view, advertising oneself to be a white lawyer who would take on cases for African-Americans violated both the Canons of Ethics and New York criminal law provisions barring advertisements to procure divorces.	92
In a similar case, the NYCLA disapproved of a lawyer placing such an advertisement in the program book for an event "given by citizens who are members of a single race to honor a distinguished man of their number."137 The NYCLA reached a similar conclusion about lawyers advertising that they were willing to do legal work pro bono, disapproving the practice of a lawyer's advertising that he would "handle a few deserving law cases without any fees."138	93
In Opinion 199, an anonymous member asked the NYCLA committee whether "it [is] professionally improper for an attorney, voluntarily and unsolicited, to communicate to strange persons apparently ignorant of facts upon which claims of substantial right might be urged or prosecuted by them . . . without soliciting employment to prosecute such rights?" The hypothetical further suggested that this might occur in a context in which "the government is about to collect an illegal tax--conceded by government officials to be illegal--simply because the tax payer did not know how to state his case." NYCLA responded that, "for an attorney voluntarily and unsolicited to communicate to a stranger . . . facts within the knowledge of the attorney, upon which claims of substantial right might be urged or prosecuted, is tantamount to volunteering advice to bring a law suit and is comprehended within the condemnation of Canon 28."139	94
NYCLA similarly rejected a request that it approve a "not uncommon" practice by certain real estate lawyers "to notify property owners of their rights and to seek employment upon a contingent basis to enforce them." The lawyers who submitted the question for advice had argued that this practice better served the interests of the property owners by allowing them to share expenses and achieve a "speedy and just termination of necessary litigation." Thus it should not fall within the principles of Canons 27 and 28. But the NYCLA committee disapproved, Finding the asserted reasons "insufficient to take the case out of the condemnation of solicitation by Canon 27."140	95
In still another case, an inquirer asked the NYCLA if it would be ethical for a lawyer to agree to serve as counsel for a company organized to investigate the rates charged by public service corporations. This lawyer's anticipated duties would be to advise patrons of overcharges and pursue their claims for adjustment or litigation. The NYCLA responded that the lawyer's participation in this activity would be improper, reasoning that it would "constitute a device for systematically obtaining business for a lawyer, and for stirring up litigation for profit."141	96
In the early 1920s, both the ABCNY and the ABA followed the NYCLA in establishing committees with jurisdiction to issue advisory opinions on matters of professional conduct. The first opinions of these committees read very much like those already discussed. The ABCNY opined that it would be "improper professional conduct" for an attorney retained by a stockholder to bring suit against a company to advertise for other stockholders similarly situated and request them to join with the client and contribute to the expense of such action.142 When asked whether it would be "professionally proper for an attorney who has been consulted by several members of a club as to their legal rights" to address other members of the club who had not sought such consultations and to offer to represent them professionally, the ABCNY replied that "the proposed solicitation constitutes a breach of Canons 27 and 28."143	97
The ABA also decided that it would be unethical for an association of lawyers to write letters to men in the armed services advising them of a potential claim to back pay and offering to represent them on a contingency basis in recovering the monies owed them.144 Another ABA advisory opinion found it "unprofessional" for lawyers employed by an automobile club to hold a meeting to speak to the club's membership to organize support and raise funds for litigation to challenge a new state licensing fee that would have adversely affected some of the club's members.145 The same opinion also found fault with the club's offering to its members legal services on the ground that this might violate rules against intermediary associations practicing law.	98
In short, the NYCLA, the ABCNY, and the ABA all disapproved of practices in which lawyers served as advisors to groups or organizations established for the purpose of promoting individuals' abilities to pursue potential causes of legal action. The work of the NAACP's legal representatives was not so different from that of lawyers involved in organizations that were to advise utility rate payers of their rights and seek rebates for them for overcharges, or lawyers advising service members of the existence of a cause of action for back pay, or lawyers representing the members of an automobile club who wished to challenge legislation that adversely affected their interests. In all of these cases, the plan was that lawyers would work through an organization to help a group of individuals with a common interest or purpose seek redress for legitimate claims from the courts. In light of these precedents, the NAACP's similar strategies in finding and pursuing plaintiffs' claims in the civil rights arena could have presented substantial legal ethics difficulties.	99
Reconciling the Rules and the NAACP's Work
These considerations, however, did not stop the NAACP national legal committee from pursuing its litigation agenda. This raises the question of what legal committee members such as Charles Boston were thinking about the application of traditional legal ethics strictures to the activities of NAACP. All evidence suggests that the legal committee members were enthusiastic about the NAACP's litigation strategies; it does not appear that these members simply failed to realize what the NAACP was doing. It is also clear that the NAACP's early lawyers were not oblivious to legal ethics issues. Hints such as Arthur Spingarn's memo to Brinsmade and Nerney cautioning them against making first contacts to prospective plaintiffs suggest that the legal committee was aware of the ethics pitfalls the organization could face.146 If the committee was not oblivious to legal ethics issues, how can we account for its members' seeming lack of concern about potential inconsistencies between the NAACP's litigation techniques and the legal ethics precedents discussed above?	100
Some indirect answers can be gleaned from Charles Boston's writings. Boston, we may recall, was the legal committee member who had started his law career as an in-house lawyer for a title insurance company. Boston was also the legal committee member most deeply involved in legal ethics enforcement in New York City, serving as chair of the NCYLA's ethics committee and sitting on the ABCNY's committee on professional ethics and ABA ethics committees as well.	101
Boston's abundant energies on the legal ethics front seem to have flowed from a sincere belief that the development of legal ethics codes would halt what he saw as the profession's increasing immorality. No legal realist on matters of legal ethics generally, Boston's writings give every indication that he was a moderate, conventional thinker of his times, who thought of legal and moral dictates as closely intertwined. Given his ardent loyalty to his ethics projects, it seems unlikely that Boston would have counseled an organization to disobey legal ethics dictates simply because it could probably get away with doing so. Some other explanation must account for his enthusiastic endorsement of the NAACP's litigation methods.	102
That explanation can be found