ing into that agency. I looked them over carefulh'. I reported to the
Commission that I was honestly surprised at tlie quality of people
that were coming in year after year to that agency.
Our report certainly should not be interpreted as casting any doubt
on the ability of these young people.
Mr. Po'rvix. I w^ould say that, confining it to a Robinson-Patman
context, you, Mr. Kirkpatrick, are the titular head of a group which,
in the aggregate, has suffered defeats in about 80 percent of the cases
that have been brought under the act, so it would indeed come with
ill grace to allege incompetence. The stalf's batting average has been
good in these matters, no question about it.
Let me ask you this, though, as a person, really, rather than as a
lawyer, if you will, sir. Conceding that you had this great task, would
vou not feel constrained further to concede that if you were one of the
competent bureau chiefs or division staffs faced with front page stories
that there are some incompetences, would you not feel a bit aggrieved,
Mr. Kirkpatrick. Yes.
I^Ir. PoTviN. It is sort of an awful thing to have to feel you have to go
to your friends and neighbors and saj', look, look, I'm competent, par-
ticularly in rather esoteric fields that laymen and potential employers,
perhaps, do not fully understand.
Mr. HuxGATE. Pardon me.
Has this report officially been made public, or did it leak out?
Mr. Kirkpatrick. Oh, no, we sent, as is indicated in the covering
letter at the beginning â€” it is a letter from me to President Segal of the
Bar Association â€” that we were concurrently sending a copy of the
report to the White House.
j\Ir. HuxGATE. So it was public property that was reported ?
Mr. Kirkpatrick. That is correct.
Mr. HuNGATE. And reported as such ?
Mr. Kirkpatrick. Yes, it was fully made public on September 15.
Mr. HuNGATE. And I suppose you felt a conflict in duty that a
good lawyer frequently finds â€” you were asked by the President t/)
study the situation and three of the Commissioners told you that
they had incompetent help. If you had refrained from speaking,
would you have been violating another duty ?
Mr. Kirkpatrick. And as Professor Pitofsky pointed out, the Com-
missioners have virtually used the same language themselves, without
naming names, and w^e do not feel we are reporting anything ymr-
Mr. Wertheimer. The same language publicly ?
Mr. Pitofsky. Yes, they have â€” well, substantially the same lan-
Mr. HuNGATE. Mr. Button, would it be agreeable to you to recess
until 2 p.m., until maybe some other members can come ?
Mr. Button. Surely.
Mr. HuNGATE. Mr. Dingell would like to be here, also Mr. Smith
and Mr. Conte. The House is in session.
Mr. Wertheimier. May I raise one point before we recess ?
Mr. HuNGATE. Certainly.
Mr. Wertiieimer. When we were talking about the staff, Mr. Pitof-
sky, you made the point you were ha])py and surjn-ised to find a
very high quality of young lawyers coming into the Commission.
What did you fiiid in terms of tlie staff turnover for these young
lawyers ? Has there been a high rate of turnover ?
Mr. PiTorsKY. It is a high rate, but I do not think it is substantially
higher than one finds in the Government, generally. That is what
we were told by the people at the Commission. I saw no reason to
doubt it, but we did not have an opportunity to check turnover rates
in all of the other agencies. I do not think it is out of line.
Mr. Werthei3ier. Thank you.
Mr. HuNGATE. The subcommittee will stand in recess until 2 p.m.
(Whereupon, at 12 o'clock noon, the subcommittee recessed, to re-
convene at 2 p.m., this same day.)
Mr. DiNGELL. The subconmiittee will come to order.
Gentlemen, the Chair is happy to welcome you back. I am sorry
that I missed your presentation this morning, but as you know, I had
urgent affairs in other committees that required my presence.
I must tell you that my presence there was successful and I want to
tell you that I have accomplished my purposes.
Mr. KiRKPATRiCK. We are happy to have you here.
Mr. DiNGELL. Off' the record.
(Discussion off the record.)
Mr. DiNGELL, The Chair will recognize counsel, Mr. Potvin.
Mr. PoTviN. Mr. Kirkpatrick, at the time that we recessed for tlie
noon break, we had just completed a consideration of a letter written
you by the Executive Director of the Commission.
Mr. Kirkpatrick. Yes, sir.
Mr. Porv^x. I have further at this time and would like to offer for
the record, Mr. Chairman, a letter from Charles R. Moore, Acting
Director of the Bureau of Field Operations, directed, again, to Mr.
Kirkpatrick, dated September 22.
Mr. DixGELL. Without objection, the document will be included in,
the record at this point.
(The document referred to follows :)
Federal Trade Commission,
Washington, B.C., September 22, 1969.
Mr. Miles W. Kirkpatrick,
Chairman, Commission To Study the Federal Trade Commission, American Bar
Association, Philadelphia, Pa.
Dear Sir: Comments tliat appear in the latter part of paragraph 3 of page
33 of the report of the Commission of the American Bar Association that in-
vestigated the Federal Trade Commission, commencing with the words '"We
were informed by the Bureau chief in charge of I'ecruitment of field oflSce
attorneys" and continuing thi-ough that paragraph, purport to reflect the mean-
ing of statements made by me before that Commission.
The statements the Commission there makes regarding what I said relative
to the hiring of personnel for the Bureau of Field Operations are totally inac-
curate and very incomplete.
First, I did not state that either the Commission or I assumed "young law-
yers are not eomiietent to engage in both trial and investigative work." There
was no discussion relative to learning capabilities of young versus mature at-
torneys. The subject under consideration at that point was whether trial should
continue from headquarters or be transferred to field offices.
I did state that the trial of cases and the investigation of cases involve two
distinct tyi)es of vpork that required different skills ; that some attorneys could
develop high proficiency in both skills and that some could become highly pro-
ficient in only one ; that substantial experience in either field was necessary to
attainment of high proficiency ; that trial and investigational deadlines and
other demands of the two types of legal work would present difiicult problems in
orderly and effectively performing both types of work ; that the Commission had
heretofore generally kept investigation and trial in separate staffs apparently
because of the conviction that specialization and all other factors considered,
better results were produced by this plan ; that the trial of cases by attorneys
located in field oflBces previously had been utilized on a very small scale and that
I was quite willing to collaborate in trying it more extensively if the Commission
so desired. I then commented that I had tried many civil and criminal cases be-
fore joining the FTC's staff. Concluding my comments on this subject, I proceeded
to offer several suggestions on implementation, should the Commission decide
to utilize field attorneys to try cases. (Incidentally I might add that since the
Commission not infrequently requires the testimony of investigating attorneys on
substantive matters in its formal proceedings, problems might arise iinder Canon
19 of the Canons of Professional Ethic^ of the American Bar Association if the
investigating attorney is also expected to try the case.)
It is my belief, based upon most of a professional lifetime of association with
and supervision of the legal investigative staff of the FTC. that our present sys-
tem has developed the mo.st capable staff of civil investigators in the entire
Second, I did not state that I "preferred to hire older men â€” who had been
out in the world for 10 years or so and who had come to appreciate that they were
not going to make a mark â€” because they tended to be loyal and remain with the
There was discussion before the ABA Commission of the problem of turnover
in the Commission's staffs, especially among younger attorneys. I pointed out that
this was caused in part by the capacity of private concerns to offer more money
for attorneys' services than could the Commission and that these were afiiuent
and restless times and that this factor also infiuenced the situation. I tlien
stated that the practice of giving marked preference to recently graduated law
students (or lawyers) might be over emphasized â€” that I was inclined to believe
an attorney with a few years experience, who had decided what he wanted to do,
was more valuable to the Bureau of Field Operations than n lÂ»eginner in the law
practice who had not fully decided what form of practice he preferred and was
yet experimenting with various positions to resolve that question. The experienced
attorney, I observed, would have passed through this stage, would have found
his place in the profession and would be likely to remain with the Commission. I
expressed the belief an attorney that had seen both sides of many cases as a
private practitioner probably would be more objective in his dealings with
business concerns and the public.
I further stated that attorneys who had been out in the world for five or
ten years and had found, contrary to their initial hopes, that they were not
making their marks as the country's top trial lawyers may yet find they have all
the attributes of a good field attorney and that they can investigate and negotiate
settlements of complex cases, speak before business and consumer groups, etc.,
with the best.
Third, the statement "he also reported that he gave less weight to law school
grades than other factors" again misstates what I said.
I stated that I endeavored to recommend for hiring attorney applicants suited
for the Bureau of Field Operations' particular type of work and that, in doing
so, I did not look to grades alone, but also to several other important attributes,
including basic ingenuity, i)ersonality, drive, capacity to negotiate and deal
with people under adverse circumstances without undue abrasiveness, self-
discipUne, special interest in this Bureau's type of practice, team play, like or
dislike for travel, reaction to challenge, etc.
In the interest of accuracy and in the furtherance of the mission undertaken
by the ABA Commission, you are resi)ectfully requested to correct this portion
of your report and to give the corrected statement distribution equal to that
which was given to the original report.
I am in sympathy with the objectives of your Commission in carrying out the
task assigned to it by the President and I am hopeful these explanatory comments
will be of aid to you in effectuating that purpose. I very much regret I did not
have a chance to discuss these erroneous impressions prior to the publication
of your report.
Chas. R. Moore,
Acting Director, Bureau of Field Operations.
Mr. PoTviN. This letter again, sir, refers to page 33 of the report, and
I believe that number is correct this time.
Mr. KiRKPATKTCK. Yes.
Mr. PoTViN. In brief, I believe that Mr. Moore is stating in his
letter to you that he was misquoted with reference to certain language
in your report; namely, "We were informed by the Bureau Chief in
charge of recruitment of field attorneys that this latter policy is based
on the assumption that young lawyers are not competent to engage in
both trial and investigative work."
He says he did not say tliat and some other things, and that he was
misquoted in your repoii".
Do you wish to comment on the letter, sir ?
Mr. KiRKPATKiCK. My connnent Avill be this, that I have checked
with some of those who were i^resent at the time of his interview, Mi\
Moore's interview, I have checked with my own recollection. I am satis-
fied in my own mind and satisfied on tlie basis of my inquiry of others
that we did not misquote Mr. Moore.
Mr. PoT\^N. So on the basis of both â€” â€”
Mr. KiRKPATRicK. I am unliappy to say that, may I say, but it is
a square conflict. As I read Mr. Moore's letter, and it is a rather
complex document, I do not think tliere is a whole lot of difference
between that which he says in his letter and that which we say he
said. So I would let it ffo atthat.
IMr. PoTviN. Would it be entirely possible, sir, that what we have
here is a situation which I think we all encounter in our dailv lives,
where sometimes the ears of the speaker and the ears of the listener
do not necessarilv receive the same message. That is to sav, wliat he
meant and what you understood could have been in sliglit variance.
Isiv. KiRKPATRicK. I am entirely satisfied that he acted in good faith
in writing us this letter.
Mr. PoTViN. I would equally like to stress, sir, that your motivation
is not under question here. If there is a mistake, I am sure it is an
Jifr. KiRKPATRicK. Yes.
Mr. Po-nix. Mr. Chairman, I would like to offer for the recoi'd at
this time a letter appearing in today's, October 9, issue of the New York
Times from Mary Gardiner Jones, a Commissioner at the FTC,
concerning the Kirkpatrick report.
Mr. DiNGELL. Without objection, the document referred to will be
inserted in the record at this point,
(The letter referred to follows :)
[From the New York Times, Oct. 9, 1969]
To THE Editor : I am fearful that recent criticism of the Federal Trade
Commission will blunt the impact of the exceedingly important work which
the eomniission performs in attacking anti-competitive practices and protecting
consiimers against deception.
At a time when inflation is plarinc: havoc with re-tail prices and when all
consumers â€” and particularly the elderly and the poor â€” are encountering serious
frauds and deceptions in the marketplace, it is especially important that the
public not lose perspective on the contributions which the commissiion has
and can make towards eliminating these problems.
I do not belittle the serious weakenesses and deficiencies in tlie commission's
internal structure. Nor do I minimize the tact that the commission has not
achieved the high standard of performance which the public has a right to expect
and demand of its Government agencies. These weaknesses must and can be
But the delineation by the recent American Bar Association report of these
essentially internal problem should not confuse the public into failing to recognize
the importance of the substantive responsibilities with which the commission
is charged in protecting consumers and promoting the competitive vitality of
I am also concerned that the recent criticism of the commission might damage
the professional reputations of the many fine, dedicated members of the commis-
sion staff, both in Washington and in our field offices throughout the country,
who have contributed ^o much to the accomplishments which the commis.sion has
No responsible critic has suggested that the commission staff is universally or
even generally of inferior competence. The criticism has been appropri;itely
directed at the sui>ervisory level of the staff in certain areas where there is a lack
of motivation, energy and judgment.
If the young and enthusiastic members of our staff are driven away by
intemperate criticism, the commission will fail. If their professional reputations
are damaged, we will have failed them. These fine people have indeed been the
unfortunate and unjustified victims of general indictments contained in recent
criticisms of the commissicm, I. for one, deplore this.
We, as Commissioners, need their support ; they deserve ours
Maby Gardiner Jones.
Washington, Sept. 30, 1969.
Mr. PoTviN. I believe, sir; that Commissioner Jones speaks to a
slightly different point than that to which we have been addressing
ourselves, yet closely related.
Mr. Kirkpatrick, in line with minority counsel's very properly
expressed fear that I was being unfair, may the record show tliat
within the last 10 minutes, you have read the letter.
Mr. Kirkpatrick. Yes, I do not have a copy before me, but proceed.
Mr. PoTviN. I am rather handicapped in that I need to read from it.
If you would like to look at it when you are replying â€”
Commissioner Jones says :
I am also concerned that the recent criticism of the Comm.is.sion might damage
the professional reputations of the many fine, dedicated members of the Com-
mission staff, both in Washington and in our field oflSces throughout the country,
who have contributed so much to the acomplishments which the Commission
You have read the full text of the letter, is there any comment that
you would care to make at this time?
Mr. Kirkpatrick. No, I do not think that the letter really says a
great deal different from that position which we have taken. Now,
she refers in her letter to intemperate criticism, I think in the last
paragraph. I do not think that it is intended to refer, tliat language
is intended to refer, to our report. If it is, of course, I disagree. I do
not think our criticism, such as it was, is intemperate, but I have
no real quarrel with that letter, sir.
Mr. PoTViN. Mr. Kirkpatrick, it would be, I think, both imprudent
and quite probably improper, to have in this or any record the names
of those individuals whom you or your colleagues may have felt
were "incompetent." However, the question having been raised, it
seems to me that we might properly inquire as to the identity of
the three Commissioners that made this statement to you.
Mr. KiRKPATRiCK. Yes, I think that â€” the three Commissioners who
used terms of that kind to us were Commissioner Nicholson, Com-
missioner Elman, and to the best of my recollection. Commissioner
Jones, either â€” and I may not be entirely accurate there â€” either in her
talks with us or in her public utterances elsewhere.
J\Ir. PoTviN. In support of your view, in fairness, I think we should
read the following sentence from her letter into the record. She says,
"The criticism has been appropriately directed at the supervisory
level of the staff in certain areas where there is a lack of motivation,
energy and judgment," so her letter would confirm your position, sir.
Mr. KiRKPATRicK. Yes, thank you.
Mr. PoTViisr. Now, on page 35, there is the beginning of the chapter
rather provocatively titled "The Problem of Leadership." In it you
discuss the problems that have arisen because of the public misun-
derstandings, quarrels and dissensions of the members of the Com-
mission, and, one supposes, the private ones, as well.
I would like, if I may, Mr. Chairman, just to read several sentences.
Mr. DiNGELL. You may proceed.
Mr. PoTvix. "In that connection we know that recent differences of
view among Commissioners have reached unusual levels. This dissen-
sion relating not only to law enforcement philosophy but also to ques-
tions of how the agency ought to be run, has become a matter of public
record, and is reflected in statements and speeches by Commissioners,
oral exchanges during Commission proceedings, and exceptionally
strong language contained in concurring and dissenting opinions."
Would you care to elaborate on that, sir? Particularly in terms of
how serious you think the problem is, what the implications are, and
Mr. KiRKPATRiCK. Well, I think that it is a matter, really, of public
record that there is a very sharp difference between the Commissioners
as to the philosophy that underlies the enforcement of the Robinson-
Patman Act. I think that communicates itself, of course, through a
lack of direction that we speak of elsewhere in the report, a lack of
criteria, a lack of clear direction to the staff as to what moves should
be made by way of investigations, by way of recommendations with
respect to complaints. I think that when the heads of a great agency
are so sharply divided, it is bound to communicate itself to some kind
of inability to, a paralysis in the lower levels to function.
Mr. PoTviisr. During the last perhaps 6 weeks, Mr. Oden and myself,
under the direction of Chairman Dingell, have conferred with a num-
ber of Bureau and section chiefs. We have asked this question specif-
ically. I would like to determine whether your findings, sir, are paral-
lel witli ours. We found that ]:Â»articularly in the antitrust front, and
focused upon the restraint of trade section, the R-P people, just the
highest degree of discouragement, that morale had really reached
abysmal depths. They felt that they were floundering about, and, more
importantly, perhaps, that they were being rejected by those they
sought to serve. Would your findings be along that same direction,
Mr. PiTOFSKY. Very much so. It is for tliat reason that we felt it
necessary to write the page beginning "The Problem of Leadership."
I know that much of the publicity about dissension and division
relates to Robinson-Patman enforcement, and I think it is there. But
it is not limited to that at all. We heard the division chiefs and
bureau chiefs say much the same thing in other areas of operation.
For example, one of the most discouraging remarks that we heard,
and I have great sympathy for the man who uttered it, was from the
man in charge of the consumer protection program, who said that
quite honestly, given the divisions and dissensions in the Commission,
he was not clear as to what his mission and goal was with respect to
consumer protection. Many people commented on the absence of plan-
ning, the establishment of priorities, the definition of goals, so it is
all part of that situation and we have great sympathy for the situation
of the staff, caught between these different philosophies as to the dh^ec-
tion the Commission ought to go, and caught in the situation in which
institutionalized planning seems not to have reached a very effective
Mr. PoTViN. The mention of the planning function, sir, gives rise
to another question.
Page 13 of your report, you say :
The consequence of a lack of direction from the top has been de facto dele-
gation of a good deal of authority to the staff, with a kind of veto authority over
staff decisions exercised by the five Commissioners on a case-by-case basis.
Speaking to the same point on page 81, you say, "The FTC has
made limited use of its broad power to delegate authority to the staff',"
and then go on in some particulars, rather giving the impression that
you feel far too little delegation takes place. Could you clarifv that
Mr. PiTorsKY. I am very pleased to have an opportunity to, because
I realize that on the surface, it looks as if we are taking two different
positions. But we said very plainly in our report that our proposals
for increased delegation to the staff' can't go into effect until guidelines
to the staff as to investigations that they ought to open, complaints
they ought to file, volmitary compliance actions they ought to accept
are clearly defined. It is a two-step proposition. It would be irrespon-
sible to propose increased delegation under the present circumstances,
because I do not honestly know how a good man could exercise his
Mr. PoTviN. But you do not mean thereby to dilute in any way your
overall recommendation that far more delegation take place.
Mr. PiTOFSKY. That is right, but it has to be two-step. First of all,
there has to be the institution of clear guidelines, establishment of
priorities and all that sort of thing. Then we would hope there could
be increased delegation.
Mr, PoTviN, In recent times, there has arisen what some observers
regard as a rather quaint practice of having public dissent to the
issuance of complaints. Could you speak to that, Mr. Pitofsky, to the
relative proprieties and difficulties and so forth ?
Mr. PiTOFSKY. Well, frankly, I had not really considered tliat, al-
though I know it is a practice that is relatively rare. I have no reaction
to that one way or the other.
Mr. PoniN^. The issuance of a complaint, of course, is, one mio;ht
say, analogous to finding: that there is probable cause to believe, with
a rather low order of proof required compared to a formal proceed-
ino-s in its later stages. Thus, if you were defendant's counsel and one
or more commissioners in a pu.blicly issued document enumerated their
reasons for not wanting a complaint issued, would you not thereby
feel rather secure concerning their vote on the e\entual outcome of the