Madison & Sutro. As a consequence, he asked me to represent his
company and arrange for him to call on Felix Smith. The
investigation was boiling over with subpeonas and grand jury
appearances and so forth.
Hicke: Did you know Mr. Fuller before he met Mr. Smith?
O'Brien: Yes. I can explain that in greater detail. Felix promptly got
Gene Bennett into this, and Mr. Smith, Mr. Bennett, Henry Hayes,
and O'Brien constituted themselves a team to represent Fuller &
Company and subsequently almost everybody else in the glass
business in San Francisco in relation to this investigation.
The company had previously been represented by Chalmers
Graham, and he remained as one of the counsel of record in the
course of this investigation. In those days, there was no code of
criminal procedure in federal courts, and in effect we were
practicing criminal law based on the English common law of grand
juries, of grand jury oaths, of subpoenas, et cetera. And we
promptly began to challenge the scope of these subpoenas, the
appearance of witnesses before the grand jury, the propriety, the
legality, the constitutionality of the oath of secrecy that was
given to witnesses before the grand jury, et cetera.
Hicke: I take it this was the first time these challenges had been put
before the court?
O'Brien: Challenges had been made, I'm sure, in the past to the breadth of
subpoenas duces tecum on the ground that they violated the Fourth
and Fifth Amendments - and in our case we argued the Sixth
Amendment as well - but nearly every day there was a court
appearance by Felix Smith or Gene Bennett, and occasionally by
O'Brien, to challenge some aspect of this ongoing investigation.
We challenged the constitutionality of the oath of secrecy,
which had been given to the daughter-stenographer of one of the
potential defendants in the case. She refused to take an oath of
secrecy that would prevent her telling her father or her lawyer
about any testimony she gave before the grand jury.
Hicke: That was Doris Goodman?
The thrust of the government's investigation was that a
gentleman by the name of Sam Goodman, who represented the Employers
Association in the flat glass industry in San Francisco, was really
the nexus of an illegal conspiracy to fix the price of glass and to
fix the price at which contracts to install glass were let in San
Francisco. Doris Goodman worked for her father in this small
office he had, and Sam Goodman was one of the principal targets of
I won't rehearse all of the stories about the case. We did
challenge the oath of secrecy. The Ninth Circuit more or less
waffled on the issue, but said that the oath had to be interpreted
in a way which was consistent with the right to counsel provided in
the Constitution. We had refused to allow Doris Goodman to take
the oath on the ground that her constitutional rights were being
invaded, and the Ninth Circuit Court of Appeals held that she
hadn't yet suffered any invasion of her constitutional rights,
which in effect meant that the only way to test the legality of the
oath was to take it, and then violate it, and then be held in
contempt, and be sent to jail, and then test the issue. So I took
her out before [Judge Adolphus F.] St. Sure just before Christmas,
I think in 1939, proffered her as a witness, and she took the oath
O'Brien: I moved the court in the person of Judge St. Sure, the chief judge
of the federal district court, to relieve her of the thirty-day
jail sentence, the sentence that she had received, and he did that.
So that aspect of the matter was successfully maneuvered.
Hicke: She was somewhat courageous to do that.
O'Brien: She was courageous. And her father was courageous. And when they
passed the Federal Rules of Criminal Procedure later, the first
thing that went into the rules was a provision that you could no
longer give such an oath to a witness before the grand jury.
I had the extraordinary experience of finding out that despite
that new rule, the U.S. attorney in the Northern District continued
to give such an oath of secrecy to witnesses before the federal
grand jury. I believe it was in '52, or after Eisenhower was
elected president, and there was a new United States attorney. In
the federal district court I submitted a brief on this subject,
which was presented to the senior district judges and all the other
judges of the district court. They decided to follow the Criminal
Rules of Procedure finally.
Hicke: Good heavens. That took a long time.
O'Brien: Yes, a long time. We took another issue in the glass case to the
Supreme Court of the United States in the course of the
investigation - Cobbledick-Kibbe v. United States 1 - to test the
question of the appealability of an order denying a motion to quash
a grand jury subpoena duces tecum.
In the middle of the investigation, the special assistant to
the attorney general, Morris R. Clark, in charge of this
Hicke: I've got the brief, so we can fill it in.
O'Brien: - yes - was relieved of his job, and in his place there was
appointed one Mr. Tom Clark.
Hicke: That's a familiar name.
O'Brien: Tom Clark was as about as far away from the action as you could
get. He was still trying cases left over from World War I about
so-called service-related total and permanent disability, in which
ex-soldiers and veterans were claiming that their disabilities, for
which they should be compensated, had been incurred in the course
of their service in World War I.
Hicke: World War I?
O'Brien: World War I. But Tom Clark was appointed the head of the San
Francisco office of the antitrust division and took over this
investigation. Ultimately all of the companies involved in the
glass business in San Francisco were indicted, and many of the
individuals: Mr. Farmer Fuller, Jr., and Mr. A. H. Brawner in
Fuller & Company, and the partners of a number of smaller glass
1. (1939) 60 S.Ct. 299; 107 F2d 975.
The case was ultimately settled after a great many months of
slugging it out. I spent a year or so preparing the case for the
trial and then moved to set the case for trial, which was an
extraordinary thing for a defendant to do in a criminal case. The
government, which really never had intention of trying these cases
but expected everybody to come in and pay $5,000 and walk away, was
astonished when we moved to set the case for trial. Mr. Clark
promptly hired one Mr. Joseph Alioto as an assistant in the
Antitrust Division in the San Francisco office to help him prepare
Hicke: Had quite a few famous names in there.
O'Brien: Yes. But in the end, the case was settled by dismissing all the
personal defendants, including the members of partnerships, and if
you look this case up in the Blue Book, which is the record of the
disposition of antitrust cases, you'll see that it says that it was
possible to fine the partnerships while dismissing all the
partners, on the theory that the partnership was some way an entity
apart from the partners who composed it. The Blue Book says that
this result was reached because of the peculiarities of the
California Law of Partnership. In fact, California had adopted the
Uniform Partnership Act as had most states of the union.
Tom Clark was a formidable opponent. He was hard to get a
rope on, but I must say, when he finally gave his word he kept it.
Once during the course of the case, I went to call on him about
some matter in connection with the suit. After some sparring
around, he told me that he had that day impaneled a new grand jury
in the federal court. I asked him what were they investigating
now, and he said they were investigating me for suborning the
government's witnesses in the glass case.
Hicke: This was because of Doris Goodman?
O'Brien: Well, it was because the principal complaining witness on behalf of
the government appeared in my office one day and asked me to
represent him. I discussed that with Felix Smith.
Hicke: Who was this?
O'Brien: He was the owner of a small glass business in San Francisco - I
can't think of his name at the moment - who had complained
originally about the other glass companies, saying that they were
conspiring to exclude him from participating in these big glass
jobs in the city.
Hicke: I wondered how the case got started, so that explains that.
O'Brien: Yes. After I had moved to set the case for trial and they were
beginning to dust off all their old transcripts of the federal
grand jury, he appeared and asked me to represent him. And I was
simply stunned. So I talked to Mr. Smith and Mr. Bennett about it,
and so Felix said, "Well, why not?"
Having in mind this oath of secrecy, I was careful not to ask
him any questions about his testimony before the grand jury. But
he explained to me that he had come to see me because he now
realized he'd been totally off-base and wrong about the accusations
that he had made against the other glass companies; that he no
longer believed in the charges he had made, and he wanted me to
protect him, because he had had a phone call from Joe Alioto, who
wanted to come out and see him and get him woodshedded to testify
in the forthcoming trial.
So I said to him, "Well, I guess the only thing to do is to
wait for Mr. Alioto to call you and then tell him that you are
perfectly willing to talk to him, but you'd like to have your
lawyer present." That's what happened. Joe called him, and he
said, "Why, certainly, I'd be delighted to have your lawyer.
What's his name?" I couldn't ask the man what he had said to the
grand jury, but he had a right to a lawyer,
That really puzzled
Hicke: You certainly gave them a few things to think about all the way
O'Brien: They thought it over for a week or two, and then they called him
again, and he said the same thing to them. So after they had
called him the second time, knowing that I represented him, I
called Joe and I said, "Joe, how long have you been practicing
law?" He said, "What's it to you?" He said, "Oh, I don't know,
three years." I said, "Well, you know enough to not to talk to a
man's client out of his presence, don't you?"
That was how Mr. Clark came to tell me that they were
investigating me for obstructing justice. So I said to him, "I'll
tell you what I'll do, Tom: I'll waive my right against self-
incrimination if you will swear me as the first witness in your
investigation and let me testify about some of the shabby things
you people have done." That was the last I heard of that
Hicke: Oh, very interesting.
O'Brien: Well, anyway, Felix went back to Washington to try to settle the
case with Clark, and they got closer and closer, and ultimately we
did make a settlement. All the individuals except one were
dismissed from the case. W. P. Fuller & Company probably paid a
fine of $5,000. These little partnerships paid about $2,000 or
$3,000 and that was it. One gentleman by the name of
[Alexander H.] Brawner was the sacrifice. He pleaded nolo
contendere and was put on probation for six months with the
understanding that at the end of that period the record would be
expunged, which it was. That was the end of the lawsuit.
I worked like a galley slave, and I worked very closely with
Felix and Gene Bennett, and it was a mighty hassle. It was a
really a big deal for the time, and it led me from one grand jury
investigation to another. And since by then I'd had my nose
bloodied considerably with many things, I began to move into many
more grand jury investigations and antitrust cases and so on.
That went on until 1942, when I left the firm. I continued to
represent the Fuller, along with other people, and by the time the
war came along I'd been practicing law about six or seven years.
The Infested Prunes Case
Hicke: Before we get to the war, you mentioned that you had tried a series
of lawsuits with Sam Wright, among others, and Herbert Korte, as
well as Gene Bennett and Del Fuller?
O'Brien: Yes. I used to prepare these cases for trial, and I tried a few
little cases, and I tried a case over in Oakland in the justice's
court. They were always pretty careful about letting you go out on
your own and start trying cases. But I put together a lot of cases
in the insurance field, total and permanent disability cases. I
did try a number of cases with Sam Wright, a couple of important
Norbert Korte and I tried the first criminal case involving
the then brand-new provision of the Food and Drug Act, which had
criminal sanctions for shipping adulterated food in interstate
commerce. It was really a fascinating case, because a cargo of
prunes had been shipped from San Francisco through the canal, found
their way to New York and into a cold storage warehouse. Six
months later, a Federal Food and Drug inspector found this cargo of
prunes in the warehouse and discovered that they were infested with
some sort of insects. The charge was ultimately made that the
prunes had been infested before they left San Francisco.
A criminal suit was filed against Libby, McNeil & Libby.
There was no real discovery in a criminal case in those days. The
defendant really couldn't do much to get a disclosure of what the
government intended to prove, but it was the first criminal case
brought under the Food and Drug Act, and the government was
extremely eager to show that the new law had lots of teeth. And
they really made a federal case of it.
They had all of their chief scientists and heavy enforcers
here working on the case. Norbert and I were defending Libby,
McNeil & Libby. The government was represented by a fine young
lawyer in the United States Attorney's office by the name of
Alfonso Zirpoli, who became a distinguished federal district judge.
The case was a scientific case in effect: what were the insects?
What was their stage of development? Could they have infested the
cargo before the ship left San Francisco, having in mind that in a
cold storage warehouse they obviously couldn't develop?
Hicke: Yes. They had to see if they were California bugs or something
that had been picked up along the way?
O'Brien: Yes. Right. Whether they could have been infested when they went
through the Panama Canal, or what. But bear in mind it was a
criminal case, and the government had the burden of proof of
showing beyond a reasonable doubt that the prunes were infested
when they left San Francisco.
I made a motion to discover, to get my hands on, the samples
of the prunes that the government inspectors had taken, and the
judge would just barely listen to me. He started up and almost
walked off the bench when I stood up to speak. For once in my life
in a courtroom I was quite indignant. His name was St. Sure; he
was the senior district judge, kind of an irascible old gentleman.
I said to him, "I'm entitled to be heard, and this is an important
issue, and this is an important case." I said something about the
first criminal case in the Food and Drug Administration. So he sat
down. So I argued my head off, and about a half an hour later he
turned to Zirpoli and said, "Well, why shouldn't they have it?"
So we ultimately got the samples, and that enabled us to hire
some very eminent entomologists, who were prepared to testify that
they [the samples] didn't indicate in any way that the infestation
had occurred before the prunes were shipped. The government had
two or three equally distinguished entomologists, one from Stanford
University that I remember.
I had moved for a jury trial in this case. And one day when I
was in front of St. Sure, he said to me, "Counsel, I notice you've
asked for a jury trial in this case. Why did you do that?" He was
going to try the case. So I said, "Well, your Honor, this case is
really a factual case. The law is perfectly clear. If these
prunes were infested when they were shipped, then we're guilty of
the crime that we're charged with. But if they weren't, we aren't.
So that's pretty straightforward and it's all a question of fact.
And a jury is the traditional trier of the fact."
He said, "I hear you. Let me suggest to you that if you
waste the court's time in this case with a jury trial, and you're
found guilty, you can count on"- -getting more or less the maximum
was the idea. "On the other hand, if you are sufficiently
considerate of the court to waive a jury in this matter, the
court might be more inclined to treat you with some leniency."
So I waived a jury.
We tried the case for about three or four days , and about
every half hour, the judge would begin to wiggle around up there,
after the government had put its case, and we had put on one or
two witnesses, "Are you prepared to rest, counsel?" And Norbert
and I would go into a deep trance, not knowing whether to call
another witness or what to do. So then we'd call one more so if
there was a finding against us, at least we'd have a record to go
up on appeal .
We finally rested, and he said, "Mr. Clerk, take this," and
he dictated an opinion right from the bench. "Not guilty."
He had it already in mind?
Yes, but we didn't know that.
He probably had it ready when he was asking you to waive the
Well, maybe so. I don't know. But he found that it was an
entomological mystery and the government had not carried its
burden of proof.
The canning industry and the food industry naturally were
watching this case with great interest, because it was the first
criminal case brought under these new provisions of the Food and
Drug Law. So it was quite a celebrated case at the time. We
were vastly pleased that we had a successful result.
The Firm Offices
[Interview A: February 2, 1987 ]tt
O'Brien: I'm moving back to 1928 and the summer when I worked in the office.
In those days you got off the elevator on the nineteenth floor,
walked toward the present front door, but turned into the office on
the right where the receptionist now sits. There was a counter
there, and all visitors to the office walked into a small anteroom
and stood at the counter. The office manager, Mr. Draycott, sat
just behind the counter. In the far corner of the room, near a
short hallway that connected with the long corridor on the
nineteenth floor, sat the calendar clerk. At first, that corner
was devoted to a one-place switchboard, which was the throne of a
snappy-eyed, dark-haired woman by the name of Billie, who as I told
you ran a magnificent intelligence system. As time wore on, she
had a relief, a handsome, young, blonde woman by the name of
There was a buzzer system for associates, most of whom did not
have telephones in their offices. Since they were all situated on
one floor, running down the hall from 1906, when Billie received a
telephone call for an associate, she buzzed that attorney's special
code signal, and he repaired to the counter in the outside office
to answer the telephone.
Hicke: The partners had telephones in their rooms?
Hicke: Did the associates have offices to themselves?
O'Brien: Most of the associates had offices. We, at some stage, took over
the twentieth floor, or part of the twentieth floor, and a whole
series of offices were created there. Most new associates, when
they were hired - certainly in my day in 1935 - did not have
offices, and we all sat in the library and worked there, responding
to our buzzers to see partners. We went to the telephone to find
out what the message was, whether to go to the phone, or to see a
partner, or et cetera. About 1936 or 1937, the firm took over half
of the twentieth floor and remodeled it into offices, and those of
us who had resided in the library were doubled up in offices on the
twentieth floor. And I first shared an office on the twentieth
floor with Fred Hawkins.
Hicke: You've indicated that he was employed at about the same time you
were, and became partner about the same time.
O'Brien: He was employed a month or two before I was employed. He graduated
from Stanford Law School with a fine law school record in 1934. I
guess he had trouble finding a job.
In any event, during the intervening year, he had been
teaching law at some local law school, and was hired to PM&S just a
few months before I in 1935. He was a tall, athletic, blond
gentleman, outgoing, vivacious, nervous, a racehorse sort of
gentleman had been a star basketball player at Stanford during
his college days. And we hit it off well.
O'Brien: I have not talked about Gene Prince, although I could write volumes
about him. I first met him when I was still in law school, and he
was president of the Boalt Hall Alumni Association and came to
Boalt to give a speech. He was a wonderfully impressive man with a
Lincolnesque face, a command of the language, a shining sincerity,
and immediately attracted everyone in sight with the warmth of his
wonderful smile and his legal accomplishments.
As the years wore on, we became dear friends. In fact, I felt
honored that he named me, along with Harry Borrow, to be his
executor. As a consequence, before his death, I had many long
discussions with him about his personal life, his personal affairs,
and after his death was able to resolve in a satisfactory way some
of the problems which he had foreseen. He was a greatly beloved
man, highly respected and honored at the California Bar, and a
superb appellate lawyer. I stop there, because there's so much to
say that it's better not to launch into a long, discursive account
of his life and career.
Hicke: Does, perhaps, one outstanding illustration come to mind of his
activities - appellate activities - or his contributions to the
O'Brien: There really are so many. The case that comes to my mind is one
that he lost. He was retained by the Regents of the University of
California to represent them in the litigation involving the
loyalty oath, a case which he ultimately lost. 1 The lawyer on the
other side was Stanley Weigel, later a federal district judge in
San Francisco. The litigation was conducted, despite the political
1. Tolman v. Underhill (1952) 39 Cal.2d. 708.
atmosphere and the intense feelings on all sides, on a standard of
legal excellence which one could not help but admire.
as this in the '60s?
It's so long ago. I think it must have been in
Eugene Bennett, Insurance Cases, and the Davidowitz Trial
O'Brien: I also worked closely with Gene Bennett as a young associate. I
helped Gene Bennett in a whole series of lawsuits to prepare for
trial. Anyone who has ever seen a photograph of Gene Bennett will
understand irantediately that he was a man of distinction, and he was
a superb trial lawyer - certainly the most gifted that I came to
know personally. He had a style which was unique. He was the soul
of courtesy in a courtroom, not only to the witnesses, and of
course to the court, but more particularly with respect to opposing
counsel. And many of the barroom floor attorneys in San Francisco
were totally disarmed by his considerate and courtly style.
One of the earliest cases in which I was involved with Gene
Bennett was a lawsuit against Armour & Company in the superior
court in Oakland. It was a case we lost under circumstances that I
won't relate, but there were several co-defendants who ganged up on
us with the plaintiff's lawyers to fasten liability on us in the
case, and we could not extricate ourselves from this in the face of
some very shady testimony.
I won't mention the lawyer's name on the other side. He was a
highly successful personal injury lawyer, and this was a personal
injury case involving an accident in a big market in Oakland. But
he was absolutely mystified at Gene Bennett's conduct in the
courtroom. He puzzled to find an opponent who treated him with
respect, and with good manners, and with a civility which were not
part of his lexicon. In fact, when the case was over, he promptly
offered me a job, and he talked with amazement about the wonderful
character and style of Gene Bennett.
I may not have mentioned that I prepared a whole series of
cases for him - for Gene Bennett - involving claims under life
insurance policies with total and permanent disability provisions.
The firm represented Equitable, New York Life, and Pacific Mutual.
The only cases I recall involving claims for payment under total
and permanent disability clauses were those involving The