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45 Com. L. J. 323 (1940)
Address by Mr. Harry S. Gleick, of St. Louis

handle is hein.journals/clla45 and id is 357 raw text is: Adc/res 4y Mr. Harry S. Gleick, of St. Louis Mr. McNabb, Mr. Teller, ladies and gentlemen of the conven- tion: It is a privilege to be here, but at the same time it is a worry. I feel as much at home in discussing this particular subject as you gentlemen of the Referees Association would feel were you requested to appear before a convention of distinguished judges and discuss before them what you think of them. And yet your good Secretary, Mr. Bearce, has asked me to dis- cuss this matter in a rather serious way. It is also difficult for ifie to discuss the matter knowing that I have the honor and yet the responsibility and the burden of sub- stituting on this program for your good friend, Jake Weinstein. I am sorry that he could not be here with you. In discussing a subject such as this, it is, of course, difficult for anyone to generalize. It is even more difficult knowing that I am to be followed on the program by my own Referee in Bank- ruptcy. In this discussion I have been careful not to allude to any special conditions in my own district. As we lawyers look at the Referees it is trite, perhaps, but it is true to say that we look for the quality of honesty in them, and we find it. We may find in the Referees of the country varying degress of ability, but we find a conscientious attempt to do their duty. I have some doubt regarding the meaning of my colleague, Mr. Hunt, when he said that his friend, the California Referee, decided to retire as a Referee in Bankruptcy and become a lawyer. We lawyers marvel at the patience of the Referees. Their door is al- ways open. We wonder how they ever get their work done. They must on occasion have to retire entirely from their offices either to their libraries or to their homes, otherwise the fulfillment of the exacting duties placed upon them would be impossible. It is un- fortunate that they are not equipped with law clerks. We find on occasions that some Referees in the country are in- clined to be a bit arbitrary. Our Bankruptcy Act is imbued with the theory of creditor control. Not in any districts where I have been privileged to practice, but elsewhere there are districts where Referees do not permit creditor control in the election of trustees. We think that that is unfortunate where Referees endeavor to en- force their own personal preferences as to the personnel of the trustees appearing before them. It has, of course, an advantage. It means that you get experienced trustees rather than some casual individual whom the attorneys or proxies may desire to select. And yet that is one- of the inefficien- cies of our democracy, and one which we think that the Referees should not disregard. Still we should not go to the other extreme. The Referee should not permit creditors to elect anybody whom they choose as trustees. The Referees are bound to see that cases before them are effect- ively and efficiently administered, and the Referees do and prop- erly so exercise a veto power over the selection of trustees. To what extent they should do so depends, of course, upon special conditions. Yet in many instances we feel that perhaps the Ref- erees themselves do not know the extent of the bargaining and bartering between the holders of proxies for control of the estates, not for the benefit of the estates, not to attain those high ends which Referee King referred to, but simply for personal advan- tage; for pecuniary profit. And in those instances we members of the Bar practicing before the Referees hope that you will assert your authority and your influence upon counsel and upon others voting their claims. I think that few members of the Bar of stand- ing will resent such interference. If I may be privileged, in the comparative privacy of- this gather- ing, to mention a critical word I will say this: Our chief word of criticism, those of us who have any criticism, is that the Referees, particularly in the smaller communities of the country, do not compel decorum in their courtrooms. Where the facilities permit. where the Referees have been given a bench, in the true sense of the word, or where their desks are upon raised platforms, they have a distinct psychological advantage. But in those communities where the Referees use the desks in ordinary rooms, the Referees are by reason of the physical lay-out handicapped, and that is unfortunate. The courtrooms of Referees where smoking is permitted, where talking is permitted where the Referees pay too little attention to the conduct of cases before them, are not, in our opinion, well conducted, at least not as well as they should be. In many instances that situation is due simply to convention. That is, the Referees 'have been loath to exert any particular authority. Where Referees are practicing attorneys they meet members of the Bar on equal terms day after day and it is only when the Referee's court is in session that the Referee is a judge, and yet he should remember that he is a judge and enforce the dignity of the Court upon the conduct of the proceedings before him. I think that that is not merely a formality. That is a situation which has a distinct effect upon witnesses, .and in no other pro- geeding is it more important that witnesses be imbued with the dignity and the solemnity of the proceedings. We members of the Bar hope that the Referees will not think they are being tyrannical or arbitrary if they enforce quiet and dignity and conduct their proceedings as the proceedings in a court should be conducted. In that connection I am reminded of a story of a Referee who was sitting for the first time. His proceedings were in his office. Counsel for the creditors interrogated at some length. Finally the Referee started to interpose a few questions and the witness said to him: Why, that man is bothering me enough. Who the hell are you? (Laughter) Now, when Referees do not enforce decorum perhaps the wit- nesses feel that the Referee is not a judge, and the proceedings are handicapped by reason of that fact. We think that counsel also should be required to show respect and dignity to the Referee that is due his position and that is due to any presiding officer of a court. That respect and dignity cannot be obtained if the facilities are such that counsel can crowd around the Judge's chair and can overwhelm him literally at his desk. They should be required to stand a respectful distance from the desk of the Referee and address the Court as is befitting his position. The Referees, of course, are more than Judges. They are ad- ministrators. They are frequently hampered by the conduct of trustees. While in general and almost universally the conduct of Referees' offices is much more efficient than the conduct of the trustee's office, yet the Referee's office ought to be so organized that the trustees are required to file the reports that are provided by the Act and by the JRules of the Supreme Court. They should be required to close their estates promptly. They do not always do so, and in many instances the Referees have no follow-up system. No discussion of this subject is entirely complete, although Mr. Hunt has referred to it, without some slight reference to the matter of compensation to attorneys. I have always found that the Referees have examined applications other than mine with the utmost liber- ality and considerable sympathy. I frequently note that in consid- ering my application they fail to take into consideration my im- mediate financial requirements. (Lktlnter) SEPTEMBER NINETEEN FORTY

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