older lawyer's office, and depend on working for him, and accept
such small cases as he might give them to handle, and do various
chores of that sort to get established. PM&S, on the other hand,
paid me the princely wage of $100 a month, which was the starting
salary for everyone, I assume.
A few days before I was hired, Fred Hawkins had been hired,
and at or about the same time I was hired, Stanley Madden came to
work, and Marcus Stanton. Hawkins had graduated a year earlier
from Stanford Law School and had been teaching night law school
somewhere - I guess Golden Gate [University] . Madden had
graduated from Stanford, and Marc Stanton had graduated from
Harvard [Law School] and come to California, and married that
Was there some reason why four people were taken on?
like quite a few, or was that normal?
That was a vast expansion; for the firm suddenly to hire four
people was quite extraordinary. I guess that there must have been
a growth in their business. In any event, we all worked like
beavers that summer. I found it a little hard to get my footing.
I worked for Jack Sutro briefly, but then I began to work for Felix
You were a roadman first, is that right?
No. Not immediately.
Learning the Ropes; Methods of Felix Smith
O'Brien: I remember having considerable difficulty with Felix Smith, because
his idea of teaching the practice of law was to make you walk the
plank. He normally neglected to tell you much about the background
of the problem or the people, and sometimes I would walk out of his
room shell-shocked, not really knowing even what file to call for.
But there were a number of his associates down the hall who were
extremely helpful to a young, unpracticed associate.
Hicke: Did he do this purposefully, or was he just too busy to explain?
O'Brien: He was too busy. But he did expect you to handle the whole thing,
to go ahead and do it. He didn't expect you to do little memoranda
and shove them through a wicket; he wanted you to take charge and
do whatever was necessary and get it done, which was kind of
That summer was a very strenuous time, because everybody in my
class was studying like mad for the bar examination. And I,
instead, was working like a beaver to get a foothold at PM&S.
Occasionally at night I would go out to the library at Boalt Hall
and see all my friends, who were in studying all day and all night,
and taking the Witkin course - doing a systematic job of preparing
themselves for the bar examination.
As the summer wore on, I finally got my wind up, got really
frightened about what would happen, because in those days there was
no thought that you could continue to be employed by PM&S if you
didn't pass the bar. So one day about two weeks before the bar
examination, I went to see Mr. Smith and said that I'd like to take
ten days off. He looked at me in astonishment.
Hicke: Raised his eyebrows?
O'Brien: Yes, and said, "Why?" since I had only recently gone to work. I
said, "Well, I think I need the time to study for the bar." He
looked at me with the greatest scorn, and said, "Well, if you'd
asked for the time to go fishing, that I could've let you have."
Well, he was kidding, I hoped.
In any event, I got the time off, and I read my notes morning,
noon, and night, and I went through the harrowing experience of the
bar examination. And at the end of the day, I left it sort of be
numbed, without any idea whether I had really done well or poorly.
We all walked over together Hawkins, Madden, O'Brien and
Stanton - the day it was announced that the bar examination
results were available at the state bar office. We all marched
over there in a body.
Three of us had passed, but Marc Stanton had not, which was a
great sadness. He was a brilliant fellow, unusual man, very gifted
with his hands - he was a cabinet maker, and so on, and I think he
was pretty well fixed financially. Failing the examination was the
not unusual consequence of a Harvard Law School background, without
sufficient preparation for questions on the bar examination dealing
with California procedure, evidence, community property, and
subjects like that. Marc had recently married, was looking for a
place to live, or to buy, and so on - lots of preoccupations. He
passed it readily enough the next time, but he decided not to stay
with the firm, perhaps in part because of that unfortunate
experience, and I guess it just turned out that it really was not
his dish of tea to practice in a big law firm like this. He went
to Napa County and practiced happily and successfully there.
I should add one
When I went there
d like to see the
Hicke: As an individual practitioner?
O'Brien: Yes. So that was the beginning of the exercise,
thing: the firm was much smaller in those days,
as a lawyer, there were maybe twenty lawyers. I 1
roster someday, just as a matter of interest.
Hicke: Yes. I would, too.
O'Brien: It wasn't, therefore, nearly as structured as it is today. We were
not divided into "litigation" groups, or "securities," or so on.
There were people who specialized in things of that sort - the
trial lawyers - but they were a corporal's guard compared to the
total number of partners and associates now devoted to the firm's
enormous litigating practice. And there were two or three people
who did a lot of securities work. There was a marvelous lawyer who
never became a partner in the firm, who was probably the most
learned securities lawyer in town, Charles Ruggles, who was very
good to me. He and I became dear friends. He was old enough to be
my father, and we worked happily together on all kinds of
And so, I think, instead of selecting an area of the law in
which one chose to become a specialist, certainly my ambition and I
think the ambition of most of us was to be a general practitioner.
You hoped to become a sufficiently well-rounded lawyer to be a
general counsel to a large corporate client, and to handle trial
work and to be able to handle estate work and know something about
tax, and so on. So I consciously made an effort to work for
everybody and ricocheted around the office, taking on jobs from one
person or another. Sometimes that was a little disastrous, because
two or three people might suddenly be on your back for the answer
or a memorandum or whatever.
Hicke: Nobody kept track of what you did except you?
O'Brien: Well, you had a primary assignment to a partner. We were made up
of informal teams. But people borrowed each other's associates,
and things would come along that were of a particular interest, or
some minor crisis, and you would take off your coat and work on
that along with other things. So for the first seven years of my
practice, until I got to be a fairly senior associate and the war
intervened, I had a practice that kind of covered the waterfront.
Hicke: About that time there were a lot of new regulations coming out of
the New Deal.
Hicke: How did that affect the firm?
O'Brien: Well, one of the first things that happened to me was that with the
Depression, Mr. Frank Madison very senior, very dignified, very
nice, very grave - said to me that he anticipated that we would
have some clients who would find themselves in financial
difficulty, and that I should make it my business to become the
firm's expert in corporate reorganization. The bankruptcy law had
just been amended, as you say, in those days to provide for
corporate reorganizations. It was called - I don't know what it's
called now, but in those days it was called a Section 77 (b)
reorganization. So you didn't go bankrupt; you went into
So one of the things I did was to read every case in the
Bankruptcy Commerce Clearing House service, and brief it, and try
to keep myself abreast of every development in the field of
corporate reorganization. I recall once that Felix Smith was sent
a rocket by the Chase Bank, which was the trustee under a major
bond issue, seeking to intervene in the corporate reorganization of
the Western Pacific [Railroad], which was in bankruptcy proceedings
under Section 77 (b). The Chase Bank wished to intervene to
participate in the negotiations of the reorganization.
Felix Smith called me in one afternoon about three o'clock and
said, "Here, I have this letter from the Chase" - about that thick
[gestures with hands] -
Hicke: About two inches?
O'Brien: "And here is this petition for intervention in the bankruptcy
proceeding." [gestures with hands]
Hicke: About eight inches high?
O'Brien: Yes, with a lot of exhibits and bond indentures and all of the rest
of it, and there were about seven or eight parties to this
proceeding already. And he said, "Chase wants to have this heard
by next Monday." It was some critical date. So he said, "Take
care of it . "
I looked at that stuff, and it became evident to me that I had
to get an order shortening time, because normally a motion in
federal court took five days' notice, and we didn't have five days
left. The only person who could give me that order shortening time
was the senior federal district judge. So I got in a taxicab and
roared out with all these papers.
He was in the middle of a jury trial, but fortunately I had
made a good friend of his courtroom clerk. Given my knowing him, I
whispered to him about the urgency of this whole thing. He
whispered to the judge, and the judge looked very - he was kind of
an irascible old guy anyhow - he looked a little upset, but he
finally interrupted the proceedings long enough for me to make my
very short presentation to ask him for this order shortening in
time, and asked that the petition be heard on the following Monday,
He said, "I'll do that, providing that you serve copies of all
this material on all the other parties in interest today."
It must have been already five p.m.
Yes. I sped around town in a taxicab, and got everybody served and
their acknowledgment of service. When the whole thing was done, I
brought it back to Felix, and he said, "Thank you."
And then there was this long letter from the Chase Bank saying
that "we'd like to have your opinion on this and that," - all
sorts of the most esoteric and obscure questions of bankruptcy law.
Felix said, "I'll answer that." So he buzzed on his buzzer, and in
came Aggie Steel, his long-time secretary, and he said, "Miss
Steel, take this letter." And he said, "Dear Sir, I received your
letter" - he could write the shortest, most lucid, Anglo-Saxon
prose I've ever read - "We received your letter. The petition for
intervention of bankruptcy has been filed and will be heard on
Monday. Paragraph. You ask my opinion on a variety of questions.
In my view, this is the time for masterly inactivity. Yours truly,
Felix Smith. "
Oh, that's incredible.
I should tell you another thing about him, and then we'll stop. He
was the general counsel of the Standard Oil Company, and he ran
that job on the old army system. When Standard Oil Company wanted
an answer to a question, they would send him a memorandum in two
copies. No matter how complicated, he would go through it and put
an asterisk where there were questions in the course of a long
memorandum. And then he would answer the memorandum at the end of
the page: "Yes," "No," "Maybe," "I doubt it," "Felix Smith." And
we all dealt with the Standard Oil problems that way.
Or if you had to write a longer memorandum, you sent it in to
- in two copies - his copy, and the one that was going forward,
written on the original memorandum that had been sent up to him,
with such additional pages as you might have to add to that if you
had a longer answer than there was space available at the foot of
the page. At the end of the day, he had a stack of correspondence
that high [gestures with his hands], because he signed every letter
that went to the company.
Hicke: And did he read everything?
O'Brien: Yes. His stack would maybe be two feet tall, and he'd sit there
and read the answers and sign it, and if he didn't like it, he'd
throw it on the side and call you in to discuss the thing.
Otherwise, he signed out his mail at the end of the day, and that
was the way the business was conducted.
Now, nobody could do that nowadays. Nobody could handle the
volume of it. But quite apart from that, nobody would quite
tolerate his "yes" "no" answers.
Hicke: Yes. Who was the president - he was dealing with the president of
Socal at that time?
O'Brien: Everybody else of the company, too, but mostly with the top level
people. I guess in the early part of his regime, there would have
been a brief period after Oscar Sutro's death when Mr. [Kenneth]
Kingsbury was probably still president; after that it would have
been Harry [H. D.] Collier.
Well, Felix did things like that. I got to know him very well
indeed, because of these cases, the briefs of which are there: the
glass cases, so-called.
Once in the middle of those glass cases, when I was preparing
them for trial, he dropped into my office one afternoon, which was
then down the hall on the nineteenth floor. He sat down at my desk
with his hat cocked on the back of his head, and he said, "You know
what tomorrow is?" I said, "No, sir." He said, "Tomorrow is the
day I leave for a month's vacation."
He owned a beautiful lake back of Truckee, about thirty miles
over a corduroy road, called Frog Lake. His children still own
it - his sons Felix and Nathan and Lawrence. I visited there once
or twice. He said, "I've just heard this afternoon from my good
client, Standard Oil Company of California, that there's a
deputation from Dillon, Reed arriving in the morning. The company
is going to put out a $50 million debenture issue." He said, "Al
Tanner," a young partner in the firm who specialized in securities
work, "Al's out of town. So you take care of that, will you?"
Hicke: There wasn't going to be any way to contact him to ask him
questions at Frog Lake, was there?
O'Brien: No. Once in the middle of the thing though - which is a great
horror story, although I finally got it done, with a lot of heavy
lifting - some emergency in the glass case came up, and I needed
to go talk to him. He said, "Okay, come on up," so I took the
train to Truckee. He met me. We drove over this corduroy road, I
stayed overnight, we went trout fishing off a boat, and he
absolutely refused to talk about anything to do with the glass
case. He took me back to the train, and I came home no wiser than
when I'd left.
Other Partners; H. D. Pillsbury, Frank Madison, Alfred Sutro,
Oscar Sutro, Vincent Butler, More About Felix Smith
[Interview 3: January 26, 1987 ]ti
Hicke: We have just finished talking about Felix Smith, and I wonder if
this morning you could tell me a little bit more about some of the
other early partners?
O'Brien: Well, as you know, the firm was started by E. S. Pillsbury. Frank
Madison, Alfred Sutro, and Oscar Sutro became associates of his,
and by the time I arrived on the scene in 1928 as an office boy,
Mr. Pillsbury had almost ceased to come to the office, although, as
I told you in an earlier session, he did appear occasionally,
usually followed by a number of train-bearers. He never stayed
His son, H. D. Pillsbury, I believe at that time was not only
a senior partner in Pillsbury, Madison & Sutro, but president of
the telephone company. And so a fair share of his time was spent
out of the office.
Mr. Frank Madison was a distinguished gentleman, quiet,
dignified. I saw him that early summer, and he continued to be in
the firm when I first became an associate, because I recall his
asking me to become the firm's expert on corporate
reorganizations - having in mind that we were still in or perhaps
just beginning to emerge from the Depression of the early '30s.
Alfred Sutro was an eighteenth century gentleman. He wore a
rather tall collar, he was the soul of courtesy, he conducted a
personal correspondence with other gentlemen in a way that you
might have expected to see among the Edwardians. He was an
extraordinarily gifted lawyer. By the time I came to know him, he
was getting on in years, somewhat nervous and preoccupied. He was
an eminent book collector. He had a marvelous library of fine
books and fine letter press printing. He had been the guiding star
of The Book Club of California for a very long time.
Hicke: Do you happen to know what became of his book collection?
O'Brien: No, I don't.
Hicke: I think he donated it to someplace.
O'Brien: Well, I know that John Sutro, his son, very generously gave a
considerable number of books to The Bancroft Library and some to
Stanford University, but I don't know whether that constituted the
bulk of his library.
Oscar Sutro was a tall, dignified, impressive gentleman, with
a delightful smile and a wonderful way of dealing with his
subordinates - both the attorneys that worked around him and the
hired hands. He had a very considerable reputation as a trial
lawyer, and while I've forgotten the details now, there were in
those days tales about some of his great courtroom clashes with
Garret McEnerney and other eminent trial lawyers in San Francisco.
It was said that whenever he and some of these others were in a
heavy trial, it was standing room only in federal and state courts.
And there are records of some of the famous cases which he tried
and won - jury cases - and many apocryphal stories about his
courtroom presence and some of the great cross-examinations he
When I first became acquainted with the firm in 1928, I
believe the partnership consisted of E. S. Pillsbury, Frank
Madison, Alfred Sutro, H. D. Pillsbury, Oscar Sutro, Felix Smith,
Marshall Madison, Eugene Prince, and that was it. John Sutro did
not join the firm until 1929, Vincent Butler until 1930, and Gene
Bennett, and others, at a later time.
Del Fuller was undoubtedly an associate, but I do not now
remember the other associates in the office. But my memory could
easily be refreshed if I saw some personnel records.
Hicke: I'll see if I can get some of those.
O'Brien: I'd like to see who the associates were, because I would have
probably more recollections of some of them than I would of some of
Hicke: Okay. In 1928, and also then in the '30s.
O'Brien: Yes, and from '35 forward.
I joined the firm as an associate in 1935. That was the year
that both Oscar Sutro and Vincent Butler died. I had a few
occasions to see Vincent Butler before he embarked on that fatal
airplane trip. He was a lively, intelligent, articulate gentleman,
whose Rhodes scholarship showed in his manner of speech and certain
habits. After his death, I came to know his widow well, and his
sons, Vincent and Lewis. Mrs. Butler, Lucy Butler, was a dear
friend of Mrs. William Farmer Fuller, and of Mary Tressider (Mary
Curry) - her husband, Dr. Tressider, subsequently became president
of Stanford University - and Lucy Butler, Mary Tressider, and
Mrs. Fuller frequently went on high Sierra camping trips together.
Felix Smith, with whom I worked closely from 1935 until I left
the firm in 1942 to join the air force [U.S. Army Air Corps], had a
tremendous influence on my life as a lawyer. He was an
extraordinary man in every way - beautifully educated, with
extraordinary intellectual attainments, a writer of pure Anglo-
Saxon prose, a lion in his den in room 1906, and a pussy cat
When I first joined the firm, we were not nearly as structured
as the firm is today, and it was possible for an associate to have
what was effectively a primary assignment with one partner, and
continue to work up and down other sides of the street for other
partners and associates. There was less specialization, and
certainly as an apprentice, it was my hope and ambition to school
myself in as many sides of the law as possible. I think young
lawyers then felt that their ambition should be a well-rounded
career of the law with the capacity to advise people as, let us
say, a general counsel. So I tried to make it my business to do
every kind of work.
Hicke: That brings up a question I had wanted to ask. Did you ever think
of going into solo practice yourself?
O'Brien: No. Times were so hard that I felt fortunate to have a job,
particularly at such a distinguished firm. The prospects for solo
practice in 1935 were not good.
As a consequence, I came to know a good many of the partners,
and did odd jobs for most of them, but gradually I came to work
primarily for Mr. Smith. It wasn't always easy. He had a
tremendous capacity for work. He worked rapidly, dictated short
memoranda and letters, saw a great many clients and particularly
people from Standard Oil, because of the proximity of our offices
to those of the executives of the company, and other people with
whom he conferred. He read Latin and Greek, spoke French, Spanish,
and Italian, and had the equivalent of an advanced degree in
geology. So he was a formidable man to work for.
Hicke: Do you have any sense of how he was able to accomplish all of these
things? Did he have a photographic memory?
O'Brien: Well, he had a brilliant mind, and he had very few preoccupations
outside of his career as a lawyer and his achievements in the
fields of literature and science. His wife, Martha, was equally
gifted intellectually. They lived a very quiet life and raised
three children. Felix left the office usually rather promptly
after five o'clock; he arrived promptly in the mornings - he was a
man of regular habits.
He, so far as I know, did not belong to the usual clubs or
societies or professional organizations, or participate in things
of that sort. He was a highly reserved man outside of his
office - that's what I meant by pussycat, because while he could
be frightening and formidable in his office, outside of his office
he was a very shy man.
Hicke: You did tell one story where you went all the way up to Frog Lake
to talk over a problem, and he never would let you talk about it.
O'Brien: Right. Well, that was because, I think, he consciously had a
theory about the way to bring along young lawyers. I think he
thought the only way to do that was to make you grab the hot
rivets, to walk the plank, and he would give you some horrifying
problem and watch to see whether you sank or swam. And frequently,
given the tremendous burden and workload that he carried himself,
he really didn't supervise you a great deal. He expected you to
turn in the job. I think I explained in an earlier interview how
he conducted business with the Standard Oil Company.
Hicke: Yes. The asterisks and "yes" and "no."
O'Brien: Yes. It would be impossible to do it that way now, but it enabled
him to keep track of the myriad problems of a major corporation,
signing all the correspondence, and having all of the questions and
answers flow through him. He was totally in command and totally in
tune, totally briefed on all of the affairs of his clients.
W. P. Fuller & Co. and Cobbledick-Kibbe v. United States
O'Brien: I remember a lot of episodes in working with him, because he was so
remarkably gifted. I won't pause to rehearse a lot of yarns of
that sort, but I should say that we came to know each other much
better in the late '30s when I was asked to represent, but really,
rather to introduce an important client to the firm - a major
company in San Francisco, W. P. Fuller & Company. The president of
that company, V. Farmer Fuller, Jr., was as brilliant a man in his
way as Felix was.
I should add by way of background that in 1938 or '39 after
the NRA [National Recovery Act] - the Blue Eagle had been
declared unconstitutional, the Roosevelt administration reversed
course and in the person of Thurman Arnold began a national crusade
to enforce the antitrust laws. That crusade began in San Francisco
with the impaneling of federal grand juries to conduct
investigations for alleged antitrust violations. You could pick up
the afternoon Call any day and see that another major company had
been indicted for alleged violation of the antitrust law.
That was what was about to happen to W. P. Fuller & Co. when
Mr. Farmer Fuller became so concerned about the way his lawyers
were acting on his behalf in relation to such an investigation that
he decided he needed the support of a major firm like Pillsbury,