Washington Lawyer

Legends in the Law:  Charles T. Duncan

(Appeared in Bar Report, June/July 1996)

Charles T. Duncan, currently a member of the Iran-U.S. Claims Tribunal in The Hague, Netherlands, has practiced law for more than 40 years, during which he has amassed a significant number of firsts: first general counsel of the U.S. Equal Employment Opportunity Commission; first president-elect of the D.C. Bar and first African-American D.C. Bar president; first chair of the D.C. Judicial Selection Commission.

A graduate of Dartmouth College and Harvard Law School, Duncan has been in private practice with several D.C. firms, in public service in the Office of the United States Attorney for the District of Columbia and of the Office of the Corporation Counsel for the District of Columbia, and served as law professor and as dean of the Howard University School of Law.

Bar Report: Where did it all begin?
Charles Duncan: I am a District of Columbia native. I was born quite literally in the 400 block of Florida Avenue and, until I moved down to Annapolis last July, I lived in only four different places, all in the Northwest. I went to D.C. public schools through the ninth grade, Patterson Junior High School at 10th and U. Then I went away to Northfield Mount Hermon School, a preparatory school in New England, and then to Dartmouth. D.C. public schools, although segregated, were very, very strong schools. I had two years of Latin at Garnet-Patterson, and in ninth-grade English we read The Odyssey and The Iliad so I had a strong academic background going into preparatory school.

BR: When did you decide to go into the law?
CD: I hate to admit this but I was senior in college, and it was quite clear that I needed to further my education. I eliminated medicine and the ministry and teaching—which were really about the only options a young black kid had in those days. I ended up going to law school thinking it would finish off a nice liberal education, but after about six weeks I said, "Hey, this is very, very nice," and decided to make it my profession. But I cannot pretend I wanted to be a lawyer since I was eight years, and I think more lawyers went to law school for reasons like mine than because they had seen Perry Mason.

BR: How was Harvard Law?
CD: By then I was used to being the first Negro here and the first Negro there and basically so it was at Harvard. My class at Harvard, the Class of 1950 which entered in 1947, was the first post-war class. Returning veterans had the G.I. Bill available to them so there were in fact seven or eight black students in my class. Then it went back to ones and twos and threes and fours all the way into the 1960s. However, only two black students in my class graduated. The other was Clarence Holloway who interestingly enough was a blind student who got through Harvard despite his disability.

BR: What was your first job?
CD: For some reason I was convinced I could only practice law in New York City, so I went with one of the leading Wall Street firms: Rosenman, Goldmark, Colin, and Kaye. I suppose I ought add that I interviewed with 15 or 20 of the top Wall Street law firms and all of them said, "Mr. Duncan, we are ready to have our first Negro associate, but our clients are not ready." I was not offered a job in any of the mainstream firms, but Rosenman was one of the leading so-called Jewish firms.

As it turned out I hated it. I didn’t like big city living, and I didn’t like big firm practice. I was assigned to a partner who specialized in wills and estates, although I did general corporate work. Like any new associate I basically did research, had little or no client contact, no courtroom contact at all. I stayed for three years and then I came back here.

BR: What was your first job in the District?
CD: It was with a very small four-person firm called Lawson, Mackenzie, and Robinson. The Lawson was the late Belford Lawson, the Mackenzie was Marjorie Mackenzie who became a juvenile court judge, and the Robinson was Aubrey E. Robinson Jr. who became a U.S. District Court judge and later chief judge and now a senior judge of the District Court. That association didn’t last very long. Aubrey Robinson and I left and, together with Frank Reeves, a leading civil rights attorney and namesake of the D.C. government’s Reeves Building, we formed Reeves, Robinson, and Duncan.

BR: Were there many black lawyers in Washington at that time?
CD: Not numerically in the sense that there are today, but there was certainly a thriving and active black bar. It was strictly limited in terms of what we could do and what clients we were able to attract, but certainly the criminal field and the commercial contract field—small contracts— insurance, divorce, were very active. It just so happened that during those years the firm, through Frank Reeves, was approached to represent one of the second-string communists in New York, a man named James E. Jackson Jr. After much soul searching, we undertook to represent him and I spent six months back in New York. He was duly convicted by the U.S. District Court, but in this case the Smith Act, which outlawed advocating forcible overthrow of the government, was declared unconstitutional by the Supreme Court and our client was released. That was probably the biggest case we had.

BR: What prompted you to go to work for the government?
CD: We had a political awakening in 1956 in that citizens of D.C. for the first time were able to vote in the presidential elections. Before then Washingtonians could vote for nothing; we were "electoral eunuchs," if that’s the way to put it. Frank Reeves and I were both politically active as Democrats. In 1960, as a member of the Democratic Central Committee, I was active in [John F.] Kennedy’s campaign. I don’t remember what I did—not a lot—but I was active, as young lawyers were. Growing out of that and my desire to join government as part of the Kennedy turnover, I had a choice of positions in the U.S. Attorney’s office or with the State Department.

I was briefly chief of the appellate division of the U.S. Attorney’s office. But going in it was understood that I would become principal assistant U.S. attorney after a few months, and I served in that position for almost four years. In those days, all criminal cases except minor ones were tried the U.S. District Court. In fact, even to this day the U.S. Attorney prosecutes local crimes, the only jurisdiction in the country where that’s true.

BR: What were your most memorable cases?
CD: I tried 21 felony cases including a couple of first-degree murders, but the most interesting case was one I tried with the late Luke Moore, who later became a Superior Court judge, against an impostor attorney whose name was, believe it or not, Daniel Jackson Oliver Wendell Holmes Morgan. He was quite literally a jailhouse lawyer who learned his law while incarcerated out in Chicago. He came to the District and adopted the identity of Lawrence Archie Harris, a real D.C. Bar member who was then practicing in Sacramento, California. He practiced for 18 months before he was caught up with. Curiously enough, there was a D.C. Code provision that prohibited practicing law without a license, but no section two specifying any penalty for doing so. We had to put together a conglomerate of charges against him: embezzlement, larceny, larceny after trust, false report, and mail fraud. Because he had appeared before all the District judges, the judges accused themselves, so they had to import a judge from Memphis, Tennessee. Morgan was represented by a lawyer, now deceased, named King David who was rather flamboyant himself. Old-timers like myself will remember King David. The trial went on for a couple of weeks and we played to a full house every day.

BR: What was your next government job?
CD: I went to the Equal Employment Opportunity Commission (EEOC), which was created by the Civil Rights Act of 1964, as its first general counsel. That was fascinating. I didn’t appreciate it at the time but it involved the birth of a federal agency. The general counsel staff in those days consisted of four lawyers: general counsel, deputy general counsel, two assistants. Four of us did the whole thing, but four was a quantum leap above what existed before and we had a statute outlawing discrimination in employment. That first year was organizational, making rules on what was a complaint and when it had to be notarized—basic questions like that. Then we began to get into policy areas. We really had a messianic zeal—everyone in the agency did—to eradicate employment discrimination in the U.S. We thought we could do it; we thought we would do it. All my jobs have been interesting, but that is the one that I thought held the greatest promise.

In retrospect, I certainly think the EEOC has made a gigantic contribution to what I would call social progress. It had greater impact in the field of women than in the field of minorities, but that’s fine. In retrospect, and having grown up, I realize that fundamental problems in the society cannot be solved overnight.

BR: When did you join the District of Columbia government?
CD: In 1966, after a year with the EEOC, I was offered the position of corporation counsel for the District of Columbia. That was an exciting time. During my first year in the office, D.C. was still run by the old three-man Board of Commissioners which was appointed by the President and exercised both legislative and regulatory authority. In 1972, the Home Rule Act passed and there was an election for mayor and city council. But before then there was an interim period when, by executive order, President Johnson reorganized the city government and there came into being an appointed commissioner—called "mayor"—and an appointed city council. Of course Walter Washington was the first appointed mayor and, later, the first elected mayor.

During the transition from a commission form of government to an appointed form of government, someone in my office had to go through the D.C. Code and separate the executive functions from the regulatory functions. It was like unscrambling an egg, a massive undertaking. The actual moment of transition was of great legal interest to me as a city lawyer because we had to be careful that things didn’t lapse, police power for example. And no sooner had the new city government come into effect than we had the Martin Luther King riots. That was in April 1968 when the new government was less than a year old.

BR: Who was in charge during the riots?
CD: Books have been written about this. Article One of the Constitution says Congress shall have exclusive jurisdiction over the seat of government but, over the years, statutes were passed which vested certain executive functions in the President—appointing the Board of Commissioners for example. By the time of the riots, you have one center of authority in the White House and another in Congress. On the second day of the riots, it was the President—after consultation with the mayor—who called up the National Guard and sent federal troops. I remember vividly being in the room at two o’clock that afternoon when Lyndon Johnson called Mayor Washington and decided then and there to send the troops.

Resurrection City happened later that summer, a big, big event in the life of the city. The whole plot of ground immediately south of the Reflecting Pool became an encampment of shacks and flats and tents. The demonstrators camped for a month in my recollection. It could have been a shorter time but it seemed like forever. We got together in the mayor’s office every morning at seven o’clock—the National Park Service and Park Police and D.C. Police and the D.C. Fire Department—to review the events of the day before and decide what to do next. Eventually, it got to a point where the constructive purposes of the march had run its course and the police chief just closed it down. Most of the people had gone by then; it was almost abandoned.

I left the D.C. government in 1970. I was close to turning 50 and had to decide if I wanted to remain a government attorney for the rest of my career or return to private practice. I made the decision to return to private practice. Walter Washington was at the very least more than willing to have me stay on—he and I had a wonderful relationship—but I felt it was time to move on. So I joined a law school classmate, Lionel Epstein, in his small firm Epstein, Friedman, and Medalie which became Epstein, Friedman, Duncan, and Medalie.

BR: Were you involved in the formation of the D.C. Bar?
CD: No. The idea of having a unified Bar grew out of what was then the new D.C. Court of Appeals. The reason I’m pretty sure I wasn’t involved is that I got a telephone call asking me to run for president-elect. That year, because it was the first year, they had to elect a president and president-elect at the same time. As I remember I had to inform myself as to what the unified Bar was all about.

BR: Did anyone run against you?
CD: Yes, but I don’t remember who. The basic structure was there, but it was so new nobody did any campaigning. The first two years were largely organizational, establishing committee structures. Sections came along a little bit later. As far as issues were concerned, certainly the image of lawyers was an issue. I sort of made that a priority of mine. Pro bono was even then a big issue. CLE hadn’t come up on the radar screen. Judicial evaluation was not an issue, but dues level was.

BR: What do you think of today’s Bar?
CD: I have watched with interest both the EEOC and the D.C. Bar. There’s no similarity between the two except that both started simply, small, focused on objectives, and both have grown and grown and grown so that many years later it’s hard to for me to say, "That’s what I used to be part of." The original [D.C. Bar] charter gave us authority over anything that affected the administration of justice, which was pretty broad. We used to get involved in legislation and all kinds of matters. The referendum in 1979—which grew out of complaints by some members over rising dues levels—limited the authority and powers of the Bar mainly to the disciplinary function. I’d like to see it go back to the pre-referendum days, but I’m not going to hold my breath until it happens.

BR: What drew you to Howard Law School?
CD: What’s of interest to me about my career is that, except at the beginning, I never sought or interviewed for a job; I was always approached. With Howard, the academic vice president acting on behalf of the president asked me to come to the law school. I was very familiar with the law school, having taught there on and off on a part-time basis from 1954 to 1961. I knew the law school, I knew a lot of the faculty, I obviously had strong feelings about legal education generally and legal education for minority lawyers in particular, so it was sort of natural for me to want to do it.

BR: Did you enjoy the academic life?
CD: Of the various positions that I have had, that was the one I would regard as the least rewarding. There are things you learn about yourself, and I learned that at heart I am a courtroom lawyer. Without in any sense downplaying the importance of legal education—I grew up in a family of educators—to me that was not the courtroom and I did not find it as stimulating as everything else I had done to that point and everything I’ve done since.

BR: When did you serve on the D.C. Judicial Selection Commission?
CD: I was on the commission from 1977 to 1984, the first years of the commission, and I was chairman the first five years. I was the appointee of the mayor, who appoints one member. Other members are appointed by the D.C. Bar, D.C. City Council, the White House, and the Federal Court. Whenever there’s a vacancy in either the D.C. Superior Court or D.C. Court of Appeals, the commission sends three names over to the White House and the White House is obliged to select from among those three. If the White House doesn’t act within 60 days, the commission is empowered to make the nomination directly to Senate. This has never happened.

The commission gave D.C. a good deal of say in who went on the bench. For example, if we decided we needed a woman, we’d send over three women’s names and we’d get a woman. The same with blacks or whites or Hispanics or whatever. During those early years, while I was chairman, we participated in the process of selecting some 40 judges and it remade the Superior Court. If one were to look at the Superior Court before the commission came along and look at the Superior Court five years later, you would see the difference.

BR: Where did you go after Howard?
CD: To Peabody, Rivlin, Lambert, and Myers, general practice, a full-service law firm. For other career reasons I felt it was best to go with a larger firm which gave me greater flexibility and better ability to attract clients. Interestingly enough, a fair amount of time was devoted to work for Howard University which was in the midst of a lot of development problems. It had a hospital, a radio station, the usual problems of a university like tenure denial and alleged wrongful discharge. It had real estate problems because it had acquired the Van Ness campus where the law school is located and a campus out in Brookland where the divinity school is located.

Peabody Lambert was just a wonderful firm in terms of partners, associates, equipment—just cutting edge. But we grew faster than our client base and we just got to the point where, as an economic matter, the thing to do was to dissolve the partnership, which was done amicably. Three of us went to Reid & Priest, an old-line New York City law firm that got started back in the 1930s primarily active in utilities regulation. It has the reputation of having the oldest Washington branch office of any major New York firm. At Reid & Priest I continued Howard University work and—again affirmative action rears its head—I got involved in Resolution Trust Company work. I had decided to retire when I was 70 which would have been at the end of 1994. In anticipation of this, I had taken senior status at Reid & Priest and cut back on my time when the Iran-U.S. Claims Tribunal came along.

BR: What’s the Tribunal?
CD: It’s an international arbitral tribunal created by the Algiers Accord as part of the hostage settlement with Iran back in 1981. The accords provided for a return of assets and a lot of other things—most notably return of the hostages—but they also created this tribunal to arbitrate claims between the two governments or its citizens. It’s still in existence 15 years later and I’m the new man, coming up on my third year. There are three U.S. representatives, three Iranians, and three neutral country members. My appointment is a wonderful example of affirmative action because obviously there was an interest in having a minority represent the U.S., so they looked around and found me. It’s full time but, given where we are in the life of the Tribunal, it’s not as busy or as time-sensitive or time-demanding as it used to be. I’m over in The Hague about eight months out of the year.

BR: Speaking as an almost retired lawyer, what words of encouragement can you offer those just entering the profession?
CD: The role of lawyers has always been misunderstood and underappreciated. But that doesn’t take away from the fact that lawyers have always been critical to the establishment of the democratic form of government as we know it and the preservation of the democratic form of government as we know it. The lawyers I look up to as heroes are the First Amendment lawyers and criminal defense lawyers who define the limits of the First Amendment and the Fourteenth Amendment and other basic rights of citizenship. That to me is where the core of democracy lies, and that’s why I’m proud to be a lawyer, and that’s why I don’t worry too much about the lawyer jokes.