Waterman and Moore, Circuit Judges, Levet, District Judge.*fn* Waterman, Circuit Judge (concurring). Levet, District Judge (concurring and dissenting).
The appellant in this case, Gerald B. Lefcourt (Lefcourt), seeks damages and injunctive relief against The Legal Aid Society (the Society), his former employer. By a complaint filed June 8, 1968, Lefcourt sought reinstatement in his job as a staff attorney for the Society and damages for his allegedly unjustified discharge. He claimed that he was discharged because of statements he had made to fellow attorneys with the Society and because of his role in the organization of "The Association of Legal Aid Attorneys." This, he asserted, was in violation of rights guaranteed to him by the Constitution, particularly his right to Freedom of Speech under the First and Fourteenth Amendments.
After a full trial on the merits on which all the facts leading up to Lefcourt's discharge were developed, the Trial Court made findings fully supported by the evidence and concluded that the complaint should be dismissed on the merits, 312 F. Supp. 1105.
The Society's certificate of incorporation was filed in New York on March 21, 1876. Originally, the name of the Society was "Der Deutsche Rechtsschutz Verein" (The German Legal Aid Society) and its object and purpose was gratuitously to render legal aid and assistance in the City of New York to worthy persons of German birth who were without adequate means to employ other counsel. The Society was to be managed by directors (not less than 12 nor more than 50). Over the years all reference to national origin has been removed. The Society is now "The Legal Aid Society" and gives legal aid and assistance to persons without restriction who are without adequate means to employ counsel.
The By-Laws provide for its membership, namely, contributing individual and law firm members. Management is presently vested in a Board consisting of 48 Directors. Its officers are elected by the Board. The Society's Attorney-in-Chief is designated by the Board; is "subject to the control and direction of the Board"; is "responsible for the Society's legal work; and shall have charge and supervision of its Branches, Bureaus and Offices." Upon recommendation of the Attorney-in-Chief, Attorneys in Charge of Criminal Courts, Family Court and the Civil Branch may be designated.
Properly to fulfill its function in representing the indigent in the New York City area, the Society employs a large number of attorneys and has both Civil, Criminal Court and Family Court divisions, which handle for its clients matters in these respective fields. Although an attorney-client relationship exists between the individual attorney employed by the Society and the client, the client is the client of the Society and does not become the individual client of the attorney employee assigned to the case. The situation is quite analogous to that which exists in a large law firm. Individual lawyers may be assigned to a case but supervision is exercised and policy set by the more experienced seniors. Such a practice is essential for the best interests of the clients.
On December 20, 1967, the Society agreed to hire Lefcourt for a position in its Criminal Courts division on a six months trial basis. During that period, the Society was to retain the right to terminate Lefcourt's services at any time. Lefcourt commenced his period of employment with the Society on January 29, 1968. Initially he was assigned to Part IA of the New York City Criminal Court located in Manhattan. In April, he was reassigned to New York City Criminal Court in Brooklyn. During the month of May, he was active in organizing "The Association of Legal Aid Attorneys," a group of staff attorneys. Subsequently, on May 28, he was transferred back to Manhattan, and assigned to Part ID. Lefcourt suggested to Milton Adler, Attorney-in-Charge of the Criminal Division of the Society, that this was a division where there were only "five lawyers for ten cases." He walked away when Adler questioned him about this response without responding to Adler's query. Lefcourt was then reported to Adler by a lawyer for the Society, also working in the Criminal Court in Manhattan, as having said that "we foment black revolution." Later that week, Lefcourt criticized the Society's attitude toward those who admitted guilt and wished to plead guilty, saying: "Well, even though these guys are guilty, we still should take it to trial. Maybe we can beat the case. * * *" Lefcourt was thereafter summoned to the office of Anthony Marra, then the Attorney-in-Charge of the Criminal Division of the Society. Marra and Adler told Lefcourt that he was being discharged. Mr. Edward Carr, Attorney-in-Chief of the Society, then ordered an investigation. Lefcourt, his attorneys William Kunstler, Carr, Adler and Marra met on June 14, 1968 to discuss his discharge. After a second meeting on June 21, 1968, Lefcourt was informed on June 25 that his discharge would stand.
In addition to the two statements mentioned above as to "fomenting * * * revolution" and as to the Society's practice with respect to pleas of guilty, the Society advances a number of other grounds tending to indicate that Lefcourt was "unhappy," "malcontent," "hostile" and "lacking in judgment," etc. In addition there was proof that he had ignored instructions to report to the office before going to court, was habitually late, and had "nagged" Attorney Adler for greater vacation time and other privileges. The findings of fact of the District Court and its conclusions that the action is without merit are fully supported by the evidence.
The Society must have no misgivings that the best interests of the clients are not the paramount concern of its staff attorneys. Particularly true is this in the criminal field where liberty is in jeopardy. In cases in which the defendant admits guilt, most frequently his interests are best served by an attempt to have any prospective sentence reduced to a minimum -- a practice commonly known as plea bargaining. Lefcourt's statement, which the Trial Court was entitled to accept, namely, that, although guilt was assumed, the Society should take the case to trial on the gamble that it might "beat" the case, alone would have been enough to justify the Society's action in believing that he was not representing and would not represent the best interests of their clients. The client should not be the pawn of some young attorney who would play with his [the client's] liberty as a means of attaining personal glory on the chance that by some legal maneuvers he should succeed in "beating" the case. The trial of a criminal case is not to be equated with a throw of dice upon a gaming table. Thus, the Society was completely justified in its conclusion of lack of confidence that Lefcourt would be a proper exponent of its standards.
Lefcourt would cover these so obvious facts with a veil of freedom of speech. The veil is far too diaphanous to conceal reality. Lefcourt was deprived of no constitutional rights. As a private citizen he was entitled to express his views within the law on any subject of his choosing. There is no proof to the contrary. However, Lefcourt's right to freedom of speech did not preclude the Society from concluding on the basis of Lefcourt's views that he was unable or unwilling to implement various policies of the Society. He was hired on a six months trial basis which carried with it no right, legal or otherwise, to force himself upon his employer beyond the employer's decision to discontinue the employment.
Lefcourt's claim must also fail because there has been no sufficient showing that he has been denied any federal right "under color of any statute, ordinance, regulation, custom, or usage of any State or Territory."*fn1 Such a finding is a prerequisite for any relief under § 1983,*fn2 which affords him his only possible substantive basis for relief. Thus, this defect is jurisdictional in nature.
At all relevant times, the Society was under contract with New York City (the City) to provide legal assistance to indigents facing criminal charges in its courts. Lefcourt, and the division of the Society for which he worked, was engaged exclusively in providing such services, although the Society as a whole was involved in both civil and criminal matters of great variety. This relationship between the Society and the City existed pursuant to the County Law of New York State, Article 18-B, §§ 722 (2) and 722-e (McKinney's Consolidated Laws, c. 11, 1971 Supplement).*fn3 In fiscal 1968-69, which included the period of Lefcourt's employment with the Society, the City paid the Society $1,900,000 under the terms of its contract with the Society. In addition, the Society was given the use of various offices in City buildings. The Society also received funds under the terms of contracts with various other state and city agencies on account of services performed by divisions of the Society other than that which Lefcourt was associated,*fn4 and the Society also received private financial contributions, as it had since its formation in 1876, although the record does not disclose the extent of these contributions.
Despite references to the contractual relationship between the Society and the City, Lefcourt has stopped short of suggesting that the Society, or the division of the Society with which he was associated, was a mere agency of the City.*fn5 However, he has made certain allegations which are somewhat suggestive of such a conclusion, and with respect to jurisdiction, it is necessary to examine whether, irrespective of the function ...