The Founding of the D.C. Bar
Photographs by Patrice Gilbert
In 1620 the good ship Mayflower carried a band of Pilgrims from England to Plymouth Rock. After stepping ashore in "New England," they established the beginnings of a community that would eventually evolve into the United States of America.
Some 350 years later, in 1972, a band of local lawyers held a series of meetings at the Mayflower Hotel in downtown Washington. Together they launched the District of Columbia Bar.
Until the D.C. Bar was ushered into existence, all an attorney had
to do to practice law in Washington was pass the bar exam, which was
administered by a special committee of the United States District Court,
and sit for a background interview. There was no requirement to belong
to any organization, and there was virtually no professional oversight
of the lawyers who practiced in the jurisdiction.
Many lawyers look back on the era that preceded the establishment of a unified, mandatory bar with fond nostalgia. "Back in those days," says Senior Judge Frank Q. Nebeker of the D.C. Court of Appeals, "the practice of law here in the District of Columbia was a totally different thing than it is today." Lawyers, and particularly trial lawyers, constituted "a rather close-knit group. Those who practiced regularly before the courts all knew one another. There wasn’t the piranha-type of practice that you see today. A lawyer’s word was his bond."
Charles T. Duncan holds corresponding memories: "In the 1950s and the 1960s the number of practicing lawyers was very small. All the lawyers knew each other. Certainly all the black lawyers knew each other. Of course, most lawyers were in general practice. Today everyone is a specialist and the number of lawyers practicing here is much bigger."
There’s no doubt that the legal profession has undergone enormous changes over the past half-century that rendered it impossible to maintain the collegial, close-knit professional community that was the hallmark of the 1950s. But even those veterans holding the most pleasant memories from that bygone era readily concede that they were not practicing in a perfectly idyllic professional environment. To the contrary, the Washington legal community was plagued by problems that were visible to all and in serious need of redress.
Legacy of Discrimination
In the 1950s lawyers in Washington were not required to join any professional association. They could, however, join one of the city’s local voluntary bars. Given the District’s long history of racial segregation, two of the most prominent voluntary bars were the Bar Association of the District of Columbia (BADC), known as the "white" bar, and the Washington Bar Association, which served as the "black" bar. (Other active voluntary bars included the Association of Interstate Commerce Practitioners, the American Patent Law Association, the Federal Bar Association, the Federal Communications Bar Association, and the Women’s Bar Association).
Charles Duncan, now 77 and retired, remembers some not so benign elements from that time when segregation was an unpleasant fact of life. A graduate of Harvard Law School, Duncan arrived in the District to practice law in 1954 when Jim Crow segregation laws were still on the books. Washington was a city where whites and blacks attended different public schools, shopped at different stores, ate at different restaurants, and functioned in separate, parallel legal communities. Black and white lawyers did know one another, Duncan notes, because everyone shared the same courthouse-sort of.
Among trial lawyers, the definitive symbol of segregation was the law library located in the federal courthouse. Duncan remembers the circumstances well. The largest of the District’s voluntary bar organizations, the Bar Association of the District of Columbia (which was widely regarded as the city’s principal bar), excluded blacks from membership. It was the BADC that operated the law library, which was open to all BADC members-meaning whites only. Consequently, Duncan found himself banned from the law library, even though that library was located in the federal courthouse. Eventually, the law library was forced to permit black lawyers entry as the result of a successful law suit filed by the legendary Aubrey E. Robinson Jr.
Shortly thereafter, the BADC began to admit black lawyers as members. But desegregation proved a difficult, contentious struggle. The late Charles S. Rhyne, who ran for president of the BADC in 1955 on a desegregation pledge, recalled in his memoirs that lawyers who favored the maintenance of segregation subjected him to bitter personal attacks: "My children were hissed at in school. Dead cats and garbage were thrown into my front yard . Some lawyers I knew well would not speak to me."
Nonetheless, Rhyne persevered, and in 1956 the organization voted to adopt an amendment to the BADC constitution that struck the word white from the criteria for membership. Gradually, the District’s largest voluntary bar was integrated by race, but the tradition of the race-affiliated past shadowed the city’s voluntary bars for many years thereafter.
Once the BADC began to integrate, Duncan recalls, there was some discussion among members of the Washington Bar Association as to "whether there was any continuing need for the black bar association. It was the feeling of the Washington Bar Association that there was, because the white bar would never really represent black lawyers." And so the parallel legal communities continued to coexist long after the formal ban barring minority lawyers from the BADC had been repealed in 1956.
As for female attorneys, the question of whether they could join the city’s largest voluntary bar association or use the law library was never tested in court. "There were so few of us, they would have thought we were the librarians anyway," quips Marna S. Tucker, a partner with Feldesman, Tucker, Leifer, Fidell & Bank LLP and the first woman to serve as president of the D.C. Bar. By the time the library had been integrated by race, women lawyers had already been using it for years, and they were welcome to enlist as members of the BADC-provided, of course, that they were white.
Nevertheless, former federal appellate judge Patricia M. Wald, who graduated from Yale Law School in 1952, recalls that era as a time when women lawyers had to battle "the cold winds of gender stereotyping and discrimination." As an associate at the law firm of Arnold, Porter & Fortas, not only was Wald the only woman lawyer at her firm, she recalls, "I was one of the few women lawyers in town. Most of the women lawyers I knew were in federal agencies. Many of us didn’t join the voluntary bar, which was then the principal bar." Although welcome to participate in BADC affairs, women tended to gravitate to the Women’s Bar Association of the District of Columbia, which had been founded in 1917 to "advance and protect the interests of women lawyers."
Lack of Support
The proliferation of voluntary bars representing discrete constituencies (white men, minorities, trial lawyers, women, government lawyers, etc.) with special interests and special needs inevitably elicited comparisons with state bars operating throughout the United States, many of which had been organized into mandatory organizations capable of providing professional oversight and of representing the entire body of lawyers practicing within a given jurisdiction. As early as 1934 calls were heard within the District of Columbia to establish a unified bar as the best means for institutionalizing reform and elevating the quality of legal services provided by local practitioners. The initial 1930s effort to establish a fully integrated, unified bar drew only lukewarm support, but during subsequent decades the perceived need for reform intensified (particularly in regard to issues of racial and gender discrimination), and the idea of a unified bar steadily gained appeal.
In 1956, the same year the BADC began admitting black members, the Judicial Conference of the D.C. Circuit recommended that legislation be submitted to Congress to establish a unified bar in the District of Columbia, but Attorney General Herbert Brownell Jr. declined to get involved. Lacking support from the Eisenhower administration, the legislation was never introduced.
Need for Lawyer Discipline
In addition to addressing the tradition of discrimination that was an unfortunate legacy of the District’s (and the nation’s) past, reform-minded advocates urging the creation of a unified bar also felt it was imperative that a system of lawyer discipline be established.
"The impetus behind the creation of the mandatory bar," Frank Nebeker recalls, "was the need for a more uniform and effective disciplinary mechanism. Without a unified bar, the court had no way to deal with its lawyers. The voluntary associations had no official disciplinary capacity."
Prior to the founding of the D.C. Bar, the U.S. District Court relied on its Committee on Admissions and Grievances to administer disciplinary action. The crux of the problem was that its resources were severely limited; there were just two paid staff members, and they had to oversee admissions as well as disciplinary action.
"My recollection," says Nebeker, "is that
the committee met very infrequently. I don’t know that it ever sought
to disbar any lawyer practicing in the District of Columbia."
Charles R. Work, a partner with McDermott, Will & Emery and an active participant in the creation of the mandatory bar, recalls that prior to the Bar’s founding "the disciplinary system was very lax, difficult to operate, and not well funded." Such an ineffective system generated criticism on Capitol Hill, in the news media, and among the general public. Cases of unethical conduct and incompetence that cried out for disciplinary action were ignored rather than dealt with.
"The great majority of attorneys practicing in the District adhere to high ethical standards of behavior," observed James A. Hourihan in the July-October 1971 issue of the D.C. Bar Journal. "However, it must be recognized that the public image of the bar is quickly tarnished when professional wrongdoing does occur which either is not punished at all or is redressed only after an undue delay."
In addition to the court committee, the BADC also maintained a standing committee on ethics and grievances, but since the BADC was a voluntary association, it had no authority over nonmembers and no substantive jurisdiction. "Unifying the D.C. Bar," Hourihan noted, "would render feasible the retention of adequate staff to ensure the prompt and efficient operation of the grievance machinery and would greatly enhance the probability that professional misconduct by attorneys practicing in the District would not go unpunished."
Court Reform Act of 1970
As the civil rights movement, the women’s rights movement, and the home rule crusade all gained steam in the 1960s, legislative proposals for the reform of the local justice system grew more expansive and encompassed a major overhaul of the local court system. Reform-minded activists such as the late Harold Greene, who was named chief judge of the D.C. Court of General Sessions in 1966, favored transferring federal jurisdiction over local civil and criminal matters to the local courts.
"Back then," Greene recalled in a 1996 interview, "the Court of General Sessions had the reputation of being no more than a police court. Many people looked down on it as if we were all dealing with a bunch of drunken lawyers with drunken clients."
Nonetheless, Greene was a strong advocate for the Court Reform Act, of which he was also a principal architect. The statutory language in the proposed legislation called for the creation of the Superior Court of the District of Columbia and the District of Columbia Court of Appeals, and it transferred jurisdiction over major felonies from the federal courts to the local court system. It also contained a key section that outlined provisions for the establishment of a mandatory bar.
The act was stalled by conservative opposition
on Capitol Hill in the late 1960s, but much to the delight of advocates
for reform, Richard Nixon threw his support behind the court reform
plan after he was elected president in 1968. Given the blessing of a
conservative Republican administration, the D.C. Court Reorganization
Act was passed by Congress in 1970 and promptly signed into law by President
"The big thing that Nixon wanted," recalls Patricia Wald, "was to cut off the jurisdiction of the U.S. Court of Appeals for the D.C. Circuit." Nixon regarded this court, and in particular its chief judge, David Bazelon, as liberal, activist, and predisposed to favor the defendant in procedural matters of criminal law.
Noting that Nixon had made "law and order" a major issue in his 1968 presidential campaign, Frank Nebeker says, "It’s a historic fact that the decisions of the D.C. circuit court in that period were perceived as constituting a liberalization of the criminal law in favor of the accused." At least that was certainly Nixon’s perception, and his idea, says Nebeker, was "to get these cases away from the D.C. circuit" by instituting a change of jurisdiction through the creation of a new local court system.
"What the administration thought," adds Wald, "was, ’Okay, we’ll have a conservative local court system, and we’ll also have an integrated mandatory bar like they do in other states.’ " In other words, the establishment of the D.C. Bar was seen as a logical tie-in to the building of a local court system that would deprive the federal circuit court of its local jurisdiction. "Everything was ’reformed’ in a conservative mode," says Wald with a knowing, ironic laugh.
In the 1970 statute that reorganized the courts, an entire section was devoted to the establishment of a mandatory bar that would function under the jurisdiction of the newly created D.C. Court of Appeals. Despite the Nixon administration’s apparent intention to stock the local courts with conservative judges (who would be appointed by the president), the legislation would eventually come to be praised by liberals as well as conservatives.
"It was a very successful piece of public policy, a gigantic leap forward," says Charles Work. "What was interesting about [the legislation] was that it was extremely progressive and extremely comprehensive."
On December 16, 1971, shortly after the District of Columbia Court of Appeals had assumed jurisdiction from the United States District Court over the practice of law in the District, the court appointed seven members to serve on a newly created organization committee of the D.C. Bar. The committee comprised Albert E. Brault, who served as chair, and George A. Avery, Edgar T. Bellinger, R. Kenneth Mundy, David W. Richmond, Virginia L. Riley, and Fred M. Vinson Jr.
George Avery recalls that his assignment to serve on the committee "came from out of the blue." He did not volunteer, but was summoned by the court. Of the committee’s early work, he says simply, "We had been appointed by the court to make this idea of a unified bar happen, and we sat down and figured out what needed to be done to do it." Hence the series of meetings at the Mayflower Hotel in 1972 that ushered the D.C. Bar into existence.
An obvious need was to elect a slate of officers and a board of governors, and it was decided that the purpose of the Bar’s first general membership meeting would be to elect a seven-member nominations committee that would be charged with the responsibility of nominating candidates for Bar office, who would then run in a general election.
The District of Columbia Bar came into existence on April 1, 1972, and the first meeting of the general membership was scheduled for eight o’clock on the evening of April 6. Postcard notification was sent several weeks in advance to the more than 16,000 lawyers who practiced in the District.
Given the circumstances surrounding the passage of the legislation that led to the Bar’s founding, and the legacy of gender and racial discrimination the profession was still struggling to overcome, there was some concern that the mandatory bar would be dominated by conservative "old guard" leaders sympathetic to the Nixon agenda. That concern was felt particularly keenly by a group of young lawyers who were intent on making their influence felt.
"You had your old voluntary bar with several thousand members," recalls Marna Tucker, "and suddenly you had this new bar that everybody had to join. Well, we had a meeting at the Washington Council of Lawyers and we decided, ’Hey, we’re all young upstarts. Why don’t we work real hard to have a big turnout of young lawyers and try to vote at least one person on the Nominations Committee?’ That was our goal: one lawyer on the committee. We decided we would run our own slate, and we organized a telephone tree. We called every young lawyer we knew, and we succeeded in generating a big turnout of young lawyers."
On the night of April 6 the main ballroom of the Mayflower Hotel was filled to capacity, with an estimated 1,300 lawyers present. Nominations for candidates to serve on the committee were accepted from the floor, and a total of 87 names were put forward to fill the seven vacancies. At 9:30 p.m. ballots were distributed, and shortly after midnight the final tally was announced. The organizational efforts of the young lawyers paid off handsomely.
"Everybody on our slate won," recalls Tucker, who was among the seven committee members elected that night. "We were all stunned, shocked, and astonished! We succeeded in electing a diversified group that included blacks and women, which was a shock to everybody. At the first meeting of the Bar, we felt we had carried through a revolution."
If "revolution" is a bit overstated, it was certainly true that diversity had trumped tradition. The composition of the Bar’s first Nominations Committee included two women, two blacks, and three white males, and five of the seven members were under the age of 40. In addition to Tucker, those elected included Bruce Harrison, John Rigby, John Risher Jr., William Ross, Patricia Wald, and Richard Whitlock.
Ralph Temple, who was one of Tucker’s confederates that night, recalls that the old guard of traditional bar leaders was "quite taken aback" by the victory of the young lawyers slate. The traditional leadership, he says, "was anxious to maintain governance of the Bar and control all the funds that would come with it," but on the very first night they were upset by a well-organized group of young lawyers who believed in the virtues of participatory democracy.
Wald recalls that the slate was not made up of "flaming liberals," but of forward-thinking, serious-minded young professionals. "We wanted a slate that was balanced," she says. "The idea was to put forth a slate that would build a good progressive bar."
The Nominations Committee immediately went to work recruiting candidates for the positions of president, president-elect, secretary, and treasurer and 15 members of the Board of Governors. E. Barrett Prettyman Jr., who was elected the first president of the D.C. Bar that June, recalls receiving a telephone call from Marna Tucker asking him if he would be willing to run for president. "I must confess," says Prettyman, "that the mandatory bar was the furthest thing from my mind. The way Marna explained it to me was, they were anxious to get off to a good start, and they wanted to have some prominent lawyers at the Bar who would be involved. Would I run?
"Now, in those days running did not involve anything other that allowing your name to be used. You didn’t go out and campaign, or send letters, or make telephone calls, or anything of that sort. You just agreed to let them put your name on the ballot. So I said yes, and the next thing I knew I was president of the D.C. Bar."
In keeping with the goal of selecting a diverse group of candidates, the Nominations Committee made sure that a significant number of minority lawyers and women were on the ballot. Charles Duncan, who became the Bar’s first president-elect (and hence, in 1973, the first black president of the D.C. Bar), acknowledges that race was undoubtedly a factor in his recruitment as a candidate. "The Nominations Committee obviously had racial balance in mind," he reflects. "At the time I had just finished a three-year stint as D.C. corporation counsel. So my name was well known in the local legal community. If they were looking for a black guy to be the first president-elect, I was a logical choice. No one ever said, ’Charlie, we’re picking you because you’re black.’ "
Nonetheless, Duncan recognizes that one of the great strengths of the D.C. Bar has been that it has always maintained a diverse leadership that, from the outset, has been representative of a profession that has become increasingly diverse over the past three decades.
In addition to Prettyman and Duncan, the officers included Peter H. Wolf as secretary and Frederick B. Abramson as treasurer. The first board included several future presidents and judges, and two pregnant women: Florence Roisman and Amy Loeserman Klein.
"Amy and I were an educational experience for the men on the board," says Roisman. "We were two short, noisy, feisty, pregnant women. I think that maybe some of the men were appalled that they had to engage in professional conversations with women at all, let alone noisy, feisty, pregnant women. But I think they learned things from us, and I know I learned a huge amount from them and from being on that board. It was a genuine privilege to serve."
1972: The First Year
On June 20, 1972, Prettyman was informed that he had been elected president of the Bar, and the following day he was sworn in. He was "in office"-but where?
"Here we were, suddenly, with more than 15,000 members, with no office, no executive director, no means of filing anything, no way of contacting our members, no place for our members to send their dues," says Prettyman. "We didn’t have anything. There were a million things that needed to get done immediately, and there was a hell of a flurry of activity trying to get going on this. It took a year out of my life."
If the current strength of the D.C. Bar is any indication, it was a year well spent, for that was a year in which the foundations of the Bar were laid. In addition to finding office space and hiring an executive director, and taking on the nuts-and-bolts administrative functions inherent in building a new organization, Prettyman, the officers, and the Board of Governors took the initial steps necessary to ensure that a viable system of lawyer discipline was established. Rules of professional conduct were codified and a comprehensive disciplinary system was built that included the creation of the Board on Professional Responsibility, which adjudicates cases of lawyer misconduct and administers the District’s lawyer discipline system, and the creation of the Office of Bar Counsel, which investigates complaints of lawyer misconduct and serves as the chief prosecutor for attorney discipline matters.
"What the unified Bar brought was a budget and a full-time staff to investigate and prosecute cases," reflects Charles Work, "and it put a process in place for adjudication. That is a major accomplishment."
The Bar at 30
Since its beginnings in 1972, when the D.C. Bar registered 15,125 members, the Bar has grown fivefold, and currently numbers more than 76,000 members, making it the second largest mandatory bar in the United States (with California the largest).
In addition to maintaining a system of lawyer discipline, the Bar offers a wide array of services to its members, has an award-winning continuing legal education program, and a nationally recognized non-dues-funded pro bono program.
In reflecting on how the Bar has evolved over the course of the past 30 years, Prettyman says with simple pride, "It’s a wonderful thing."
The Bar Today
By Sean Groom
A far cry from the fledgling organization that E. Barrett Prettyman Jr. presided over in 1972, the District of Columbia Bar has grown and matured over the last 30 years. The fivefold increase in membership-to more than 76,000 attorneys-fueled a corresponding growth in Bar functions and services.
The Bar’s core efforts, supported by member dues, remain the oversight of admission and continued registration of lawyers, the operation of an attorney disciplinary system, and the maintenance of a clients’ security fund. The Board on Professional Responsibility and the Office of Bar Counsel were formed as disciplinary arms to enforce ethics rules among members with the goal of maintaining the integrity of the legal profession. As part of this effort, the Clients’ Security Fund reimburses clients for losses caused by member misconduct, and the Attorney/Client Arbitration Board resolves fee disputes between lawyers and their clients.
The Bar also supports a number of educational and public service missions that are not funded by membership dues. Foremost among them is the D.C. Bar Pro Bono Program, whose mission is to mobilize Bar members to help make legal assistance available to low-income persons in the District of Columbia. Some of the notable initiatives of the Pro Bono Program include the Advice and Referral Clinic, the Community Economic Development Project, and the Family Law Clinic.
Opportunities for professional development have also expanded as the Bar has grown. Despite the fact that the Bar doesn’t have mandatory continuing legal education requirements, the Continuing Legal Education (CLE) Program offers more than 90 courses annually. An accredited provider in 31 states, the CLE Program helps D.C. Bar members meet requirements in other jurisdictions in which they practice.
There are also 21 sections within the
Bar that focus on a range of practice areas, from arts, entertainment,
and sports law to real estate, housing, and land use. Each year the
sections sponsor more than 500 law-related events that offer lawyers
the chance to gain further knowledge, network with peers, and attain
leadership positions within the Bar.