(concurring):
Judge Swygert’s thorough opinion, prepared after full review of the authorities and mature consideration of basic principles and supposititious cases, commands my respect. Yet the nature of this proceeding raises questions whether as a matter of discretion it is consistent with the prudent exercise of discretionary judicial power under Article III of the United States Constitution, under the Declaratory Judgment Act, and under other statutes conferring jurisdiction upon the federal courts, for this court to pass judgment upon imaginary cases sometimes scorned as “a parade of horribles.”
This action seeks injunctive and declaratory relief with respect to the constitutionality of virtually every provision of the complex, lengthy provisions of Rule 1.07 of the Local Criminal Rules adopted by the United States District Court for the Northern District of Illinois, and of so much of that same Court’s Local General Rule 8 (applicable to civil cases) as is derived from Disciplinary Rule 7-107 of the American Bar Association’s Code of Professional Responsibility. In general, plaintiffs complain that the rules cited are so vague and overbroad as to deny the due process of law guaranteed by the Fifth Amendment to the Constitution, the freedom of speech guaranteed by the First Amendment, and other constitutional guarantees implicit in Article III and the Fifth and Sixth Amendments.
*260It is plain that the complaint is not frivolous. Without pausing to underline the careful critique in Judge Swygert’s detailed analysis, there are provisions which indubitably deny or chill the exercise by lawyers of some recognized constitutional rights fundamental to civic and professional privileges, duties, and interests. An attempt by a court to enforce some of these restrictions would be unconstitutional, and if plaintiffs are to be fully protected with respect to those rights it is appropriate that they be judicially vindicated promptly without leaving plaintiffs to act at their peril.
Yet this action invites, in advance of a specific invocation of any rule in the form of a disciplinary or punitive action, a scrutiny of all the complex provisions of a total code of professional conduct in a broad branch of the profession of advocacy. This code has been adapted from drafts prepared after prolonged, highly competent work by professional committees of judges and lawyers of distinction and experience. They, like ourselves, of course, may have erred. They, like ourselves, were acting not in relation to immediate controversies arising out of actual conflict, but in relation to hypothetical cases which they foresaw or feared.
In short, those committees, like the District Court, were exercising a quasi-legislative function.
It might have been proper and preferable for the Circuit Council of this Seventh Circuit to have reviewed in a like legislative manner those or any other rules of the District Court for the Northern District of Illinois. But that is not the nature of this proceeding. Here we have what purports to be an Article III “case” or “controversy.” We are asked to make an adjudication. That adjudication will constitute a precedent and may have other binding consequences. Yet inasmuch as it is not addressed to specific, concrete facts it also partakes of the nature of an advisory opinion with all the dangers inherent in such speculative judgments.
Of course the advisory and sweeping aspects of the opinion do not imply that the case is beyond our judicial power under Article III or any other provision of the Constitution, or under the provisions of the Declaratory Judgment Act, or under the governing principles for the exercise of equity jurisdiction.
Yet there is ground for us to weigh carefully the good sense and wisdom of our exercising our discretion whether to render a judgment upon the questions presented when we, like those who drafted the rules, are necessarily relying more on imagination than on a factual record.
It might be prudent to decline, as a matter of discretion, to deliver an opinion or to enter a judgment detailing our views on the difficult constitutional matters presented, on which perhaps we are not better qualified than the original draftsmen. We might wait for the harvest to discern the wheat and the tares.
Yet, after mature deliberation, I am content to concur in the admirable opinion of Judge Swygert, although I think it may be desirable to state the reasons that induce my concurrence.
Freedom of speech, particularly in the area of professional responsibility, is a prized value in our society. The restraints upon that freedom which are embodied in these rules, unless they are constitutionally valid, would gravely affect justice. To remit those who are faced with unconstitutional restraints solely to litigation after they had acted would impair their liberties, chill freedom of expression, and sacrifice important public interests. Judge Swygert’s opinion convincingly demonstrates that those are not fanciful dangers.
I have no doubt that in each and every instance where Judge Swygert’s opinion condemns as unconstitutional a specific provision of the rules his judgment is sound.
Perhaps I am less clear that those provisions of the rules which pass muster in Judge Swygert’s discriminating and thoughtful opinion would be certain to be upheld in a later case which arose *261upon a record of concrete conflict which had occurred in a specific instance. But if at a later date a state of facts does further illumine an issue, this declaratory judgment ought not to be regarded as an indistinguishable precedent nor an insurmountable obstacle.
Furthermore, I am not unmindful that, particularly since other courts are now wrestling with the issues here invoked — see, for example, the litigation in the New York state courts to which reference is made in the July 13, 1975 New York Times — it would probably be helpful to other judges, as it has been to me, and presumably to the bar and bench of this Circuit, to have published the penetrating and persuasive analysis prepared by Judge Swygert. Hence I concur in his opinion.