“Examination is not required of this class of applicants because, presumably, they have already demonstrated their skill and general knowledge of the law by satisfying the admission requirements of a sister state and by actively engaging in the practice of law.”
How later courts described this case
- “Examination is not required of this class of applicants because, presumably, they have already demonstrated their skill and general knowledge of the law by satisfying the admission requirements of a sister state and by actively engaging in the practice of law.”
- "Article eight, section one et seq. of the West Virginia Constitution vests in the Supreme Court of Appeals the authority to define, regulate and control the practice of law in West Virginia.”
Written by the judges who cited it.
The opinion
NEELY, Justice,
concurring and dissenting:
I concur in the result in this case but dissent to the reasoning. The record reveals that Mr. Lane holds a bachelor’s degree from an accredited college and a law degree from an accredited law school. Thus he meets all of our requirements for admission to practice on the basis of reciprocity except that he comes from California, a state which does not accord our residents admission to practice without examination on the basis of reciprocity.
Mr. Lane’s constitutional point fails. It is a valid public purpose of this State to assure that other states accord to our citizens as favorable treatment as we accord to their citizens. Since our citizens do not vote or have political influence in California, our only method of assuring favorable treatment for West Virginia lawyers in California is to mobilize a California lobby interested in fair treatment for West Virginians. How do we do that? Traditionally the means has been to accord the same treatment to Californians that they accord to us — the no ticket, no laundry approach to fair treatment. This, in fact, is the heart of the concept of “equal protection of the law.” 1 If everyone must be treated the same, then the politically strong will protect the politically weak. In order for an equal protection violation to occur, discrimination must be invidious.
There is no invidious discrimination when we deny admission without examination to residents of other states that deny our residents admission without examination. All states that admit our residents to practice without a bar examination are entitled to have their residents admitted here without a bar examination. Reciprocity is the theory upon which those interstate relations unregulated by the federal government are predicated. Once the theory of reciprocity is held unconstitutional in one context, it becomes suspect in all contexts. The result is a free for all since states that wish to treat residents of other states decently will receive no reward for their kindness, while states that wish to treat residents of other states badly can never be punished.
I dissent from the majority’s interpretation of our Rule 3.070 to require that the educational standards for all members of another state’s bar be substantially the same as ours in order for anyone admitted to practice in that state to be admitted here. Clearly we have never interpreted the rule that way. We look to each applicant for admission by reciprocity to determine whether that individual’s educational credentials meet acceptable standards, although not necessarily our own standards for initial eligibility to take the bar, and if those credentials are satisfactory, we then determine whether the candidate’s state permits West Virginia lawyers who have practiced for five years to be admitted by *589 reciprocity. If the other state permits admission by reciprocity, we then admit the candidate by reciprocity. Obviously, we do not admit lawyers by reciprocity who have done nothing but study law by correspondence course and passed a bar examination.
My concern about the majority’s opinion is that it does not foresee the possible untoward consequences for West Virginia lawyers. The majority is correct that our standard for eligibility to take the bar examination is the highest in the United States. Consequently, no state has a standard “substantially the same” as West Virginia. However, the converse is true; we do not have a standard “substantially the same” as other states, which means that our lawyers may now be denied the benefits of reciprocity because we deny admission without examination to residents of states where the educational requirements for all applicants are marginally lower than our own.
That result is absurd and the State Board of Bar Examiners should take such action as may be necessary to assure continuing reciprocity for our residents by a rule permitting admission without examination in West Virginia to lawyers with acceptable educational credentials from other states who have practiced five years. I do, however, admit that our bar Rule 3.070 is unclear on this subject. It is obvious that our bar rules at some point before my tenure were copied from some model code. The language does not appropriately reflect our practice for as long as I can remember. When the model rules were adopted it was assumed that Rule 3.070 was concerned with reciprocity and not educational credentials.
. See J. H. Ely, Democracy and Distrust: A Theory of Judicial Review, Harvard University Press (1980).