Lane v. W. Va. State Board of Law Examiners

MILLER, Chief Justice,

concurring:

While I agree with the result reached by the majority that the petitioner has not demonstrated a clear right to be admitted to the practice of law in West Virginia without first successfully completing our bar examination, I do not agree with the reasons advanced by the majority in reaching this result. The majority holds that an attorney who is a member of the bar in another state and who desires to be admitted to the practice of law in West Virginia must show that the standards of admission in the state where the attorney is first admitted are “substantially the same” as the standards for admission in West Virginia before he is entitled to reciprocity.

The majority avoids discussing the reciprocity issue by fashioning a standard that if the state where the lawyer is admitted to practice has a lower standard of qualifications for taking its bar examination than we have then the lawyer cannot be admitted to practice in this State based on reciprocity. In this case the majority finds that California permits graduates from nonaceredited law schools to take its bar examination and since we require that candidates be graduates from an accredited law school our requirement is thought to be a substantially higher standard.

The anomaly in the majority’s posture is that they ignore the fact that Mr. Lane did graduate from an accredited law school, did pass the California bar and had practiced in California for more than five years before coming to West Virginia. In every sense of the “standards” postulated by the majority, Mr. Lane would be entitled to reciprocity admission.

In my judgment, the majority opinion would have been more convincing had it acknowledged that Mr. Lane met our qualifications and proceeded to address the reciprocity issues. This was the central issue presented by both parties and involved the question of whether our negative reciprocity rule contained in W. Va. Code, 30-2-2, 1 *590 violates the Privileges and Immunities Clause of Section 2 of Article IV of the United States Constitution.

The preeminent decision in this area is Hawkins v. Moss, 503 F.2d 1171 (4th Cir. 1974), cert. denied, 420 U.S. 928 , 95 S.Ct. 1127 , 43 L.Ed.2d 400 (1975), where a New Jersey attorney sought reciprocity admission in South Carolina. However, that state had an admission rule similar to W. Va. Code, 30-2-2, which precluded reciprocity if the state that the attorney had practiced in did not accord reciprocity on substantially the same terms as South Carolina’s reciprocity rule. New Jersey, the same as California in our present case, did not grant any reciprocity. The privileges and immunities argument was disposed of in this manner in Hawkins, supra at 1179:

“The argument that Article IV, § 2 denies to the state any right to enforce a rule such as Rule 10 is equally without merit. The basic thrust of that section is to prevent ‘a state from discriminating against citizens of other states in favor of its own’, Hague v. C.I.O. (1939) 307 U.S. 496, 511 , 59 S.Ct. 954, 962 , 83 L.Ed. 1423 . So long, then, as the State does not subject the migrant attorney, seeking the right to practice in the State, to no more onerous requirements than those imposed on its own citizens seeking such right, it cannot be said that the State has violated the section. The obligation, from compliance with which the plaintiff seeks by this action to be excused, is exactly the same obligation imposed indiscriminately by the State, through its Supreme Court, upon its own citizens in the same position as the plaintiff.”

The point is argued, however, that Hawkins must be read in the light of Hicklin v. Orbeck, 437 U.S. 518 , 98 S.Ct. 2482 , 57 L.Ed.2d 397 (1978), where the Supreme Court unanimously held that an Alaska statute requiring oil and gas leases and related documents to contain a clause that would give preferential hiring to residents over nonresidents violated the Privileges and Immunities Clause. The State sought to justify the statute on the theory that it was designed to relieve unemployment. The real issue in Hicklin was not whether there was any discrimination practiced against the nonresident since this point was conceded but the case turned on whether the State could justify its action by showing it came within the recognized exception formulated in Toomer v. Witsell, 334 U.S. 385, 398 , 68 S.Ct. 1156, 1163 , 92 L.Ed. 1460 , 1472 (1948), that “there is something to indicate that non-citizens constitute a peculiar source of the evil at which the [discrimination] statute is aimed.” Moreover, Hicklin also reiterated Toomer’s further requirement that there must be a “reasonable relationship between the danger represented by non-citizens, as a class, and the ... discrimination practiced upon them. 334 U.S. at 399 , 92 L.Ed. at 1460, 68 S.Ct. at 1164 .” 437 U.S. at 525, 526 , 57 L.Ed.2d at 404 , 98 S.Ct. at 2487 .

In Hicklin the Supreme Court found that Alaska’s high unemployment rate was not a result of the influx of nonresidents, “but rather the fact that a substantial number of Alaska’s jobless residents — especially the unemployed Eskimo and Indian residents — were unable to secure employment because of their lack of education and job training or because of their geographical remoteness from job opportunities.” 437 U.S. at 526-527 , 57 L.Ed.2d at 405 , 98 S.Ct. at 2488 .

In the present case, there is no showing of an initial discrimination as between resident and nonresident lawyers. It must be kept in mind that as between these two classes reciprocity is a provision that favors rather than discriminates against the nonresident lawyers. It enables the nonresident lawyer to practice law in this State *591 without taking a bar examination. In Lowrie v. Goldenhersh, 521 F.Supp. 534, 537 (N.D. Ill. E.D., 1981), the court refused to strike Illinois’ five-year reciprocity rule stating:

“The constitutional ‘right to travel’ under the Equal Protection and Privileges and Immunities Clauses to the Constitution does not imply that a citizen ‘carries with him from state to state an absolute right ... to practice ... a profes-sion_’ Hawkins v. Moss, 503 F.2d 1171, 1178-79 (4th Cir. 1974), cert. denied, 420 U.S. 928 , 95 S.Ct. 1127 , 43 L.Ed.2d 400 (1975). Admission to practice in one state is not automatic admission to practice in the courts of another state. Application of Wasserman, 240 F.2d 213, 214-215 (9th Cir. 1956); Hawkins v. Moss, 503 F.2d at 1175-1176 (‘licenses to practice law ... have no extraterritorial effect or value and can vest no right in the holder to practice law in another state.’) The Supreme Court noted in Shapiro v. Thompson, 394 U.S. 618 , 638 n. 21, 89 S.Ct. 1322 , 1333 n. 21, 22 L.Ed.2d 600 that residency requirements to obtain a license to practice a profession are not necessarily penalties upon the exercise of the constitutional right of interstate travel. See also Memorial Hospital v. Maricopa County, 415 U.S. 250 , 259 n. 13, 94 S.Ct. 1076 , 1082 n. 13, 39 L.Ed.2d 306 (1974).”

See also Ricci v. State Board of Law Examiners, 427 F.Supp. 611 (E.D. Pa. 1977); In re Huntley, 424 A.2d 8 (Del.1980).

The petitioner cites several cases where courts have struck down residency requirements under which attorneys were required to live in a state for a certain period of time before they can take a bar examination. E.g., Stalland v. South Dakota Board of Bar Examiners, 530 F.Supp. 155 (S.D. 1982); Strauss v. Alabama State Bar, 520 F.Supp. 173 (N.D. Ala. 1981); Sheley v. Alaska Bar Association, 620 P.2d 640 (Alaska 1980); Gordon v. Committee on Character and Fitness, 48 N.Y.2d 266 , 422 N.Y.S.2d 641 , 397 N.E.2d 1309 (1979). These cases are distinguishable as they involve restrictions on the right to take a bar examination. In this area courts have shown a reluctance to sanction restrictions on the right to take a bar examination because it is the bar examination and character fitness that have traditionally been recognized as the accepted norms for gaining access to practice law in a state. In re Griffiths, 413 U.S. 717 , 93 S.Ct. 2851 , 37 L.Ed.2d 910 (1973). Thus, attempts to impose other preconditions may be suspect. Here, however, we do not deal with an applicant who is seeking access to take our bar examination but rather one who seeks to avoid it by our reciprocity exception.

Petitioner’s subsidiary equal protection argument also fails. In Cimino v. Board of Education of County of Marion, 158 W.Va. 267 , 210 S.E.2d 485, 490 (1974), we recognized the two types of equal protection tests applied by the United States Supreme Court. The more demanding test which is applicable to fundamental and constitutional rights requires that a court must find a compelling state interest is justified by the statute or other classification scheme. The second standard is more relaxed and requires a finding that the classification bears a reasonable relationship to a proper governmental purpose. In State ex rel. Piccirillo v. City of Follansbee, 160 W.Va. 329 , 233 S.E.2d 419, 423 (1977), we adopted these standards by applying the Equal Protection Clause of Section 17 of Article III of the West Virginia Constitution.

Even if we were to apply a strict scrutiny test as the United States Supreme Court has done on restrictions against the right to take a bar examination, In re Griffiths, supra, I do not believe our reciprocity rule violates equal protection standards. Again, it must be emphasized that our reciprocity rule is not a bar against gaining the right to practice law in this State. The right to take the bar examination exists and reciprocity is an exception to having to take the examination.

Furthermore, petitioner would draw the class to which he belongs most narrowly. It is not all nonresidents who seek reciprocity, for many of those will qualify for our reciprocity since they come from states that grant reciprocity to our residents. Pe *592 titioner would compose the class by confining it to nonresidents from those few states which refuse reciprocity to nonresident lawyers on any terms. We are thus invited to judge the rationality of our reciprocity standard by the irrationality of such foreign state’s standard. I would decline such an invitation for the reasons stated in Hawkins v. Moss, supra, at 1177:

“To secure for her citizens the reciprocal rights and advantages obtained under such statutes or rules is manifestly a legitimate interest and goal on the part of a state just as it is a legitimate interest of one nation to secure reciprocal property rights for its citizens in other nations. It is true, as the plaintiff argues, these statutes and rules treat differently those individuals admitted to practice their profession in states extending reciprocal rights and those from states not so granting those rights. But the mere fact that they ‘affect some groups of citizens differently than others’ or that they ‘result in “incidental individual inequality” ’ will not render such statutes or rules invalid. Martin v. Walton (1961) 368 U.S. 25, 26 , 82 S.Ct. 1 [2], 7 L.Ed.2d 5 , reh. den. 368 U.S. 945 , 82 S.Ct. 376 , 7 L.Ed.2d 341 .”

Finally, I am conscious of the fact that our negative reciprocity standard is found in W. Va. Code, 30-2-2, and not in any express provision of the Code of Rules for Admission to the Practice of Law adopted by this Court. 2 I am also aware of the law set out in Syllabus Point 3 of the majority opinion as well as our other cases including West Virginia State Bar v. Earley, 144 W.Va. 504 , 109 S.E.2d 420 (1959), which follows traditional law by placing the power to supervise and regulate the practice of law with the judiciary.

I would however recognize, as a number of courts have done, that where the Legislature passes a statute which may affect the practice of law such statute will not necessarily be struck down as an interference with the judiciary’s supervisory control over the practice of law. The primary test is whether such statute is compatible with the judiciary’s goal in regard to the practice of law. One of the best expressions of this rule is found in Sadler v. Oregon State Bar, 275 Or. 279 , 550 P.2d 1218 , 83 A.L.R.3d 762 (1976):

“The state courts have adhered to the above two principles, i.e., that it is part of the inherent power of the judiciary to determine qualifications for practicing law, but that statutes which assist the court in this function and do not encroach thereon are valid.

“ ‘The power to admit the applicants to practice law is judicial and not legislative, and is, of course, vested in the courts only. Originally the courts alone determined the qualifications of candidates for admission, but to avoid friction between the departments of government, the courts of this and other states have generously acquiesced in all reasonable provisions relating to qualifications enacted by the legislatures. Hanson v. Grattan, 84 Kan. 843 , 115 P. 646 , 34 L.R.A. (N.S.) 240; State v. Cannon, 196 Wis. 534 , 221 N.W. 603 . In re Greathouse, 189 Minn. 51 , 248 N.W. 735, 737 (1933).

“See, also, In re Opinion of the Justices, 279 Mass. 607 , 180 N.E. 725 , 727, 81 A.L.R. 1059 (1932).” 275 Or. at 286 , 550 P.2d at 1222 .

The court in Sadler, supra, concluded that the overlap of the judicial and legislative powers arises from the Legislature’s police power to protect the public welfare by promoting efficient and impartial administration of justice. See also Feldman v. State Board of Law Examiners, 438 F.2d 699 (8th Cir. 1971); In re Keenan, 313 Mass. 186 , 47 N.E.2d 12 (1943); Sharood v. Hatfield, 296 Minn. 416 , 210 N.W.2d 275 (1973); Creditor’s Service Corporation v. Cummings, 57 R.I. 291 , 190 A. 2 (1937); Annot., 144 A.L.R. 150 (1943).

I believe that the statute serves a valid state purpose to encourage other states to grant reciprocity to our lawyers. It is certainly compatible with the general goals that this Court should have with regard to *593 the regulation of the practice of law. Moreover the statute recognizes our inherent power by directing that we set the general standards for reciprocity which we have done in Rule 3.020-3.070 of the Code of Rules for Admission to the Practice of Law.

Finally, I would hold the negative reciprocity provisions of W. Va. Code, 30-2-2, are not unconstitutional and would conclude that the petitioner is not entitled to practice in this State based on reciprocity and, therefore, I would deny the writ.

. I use the term "negative reciprocity" to denote the fact that our statute precludes the granting of reciprocity to incoming lawyers where their states do not give reciprocity to our lawyers. The material portion of W.Va. Code, 30-2-2, provides:

"Any person duly authorized to practice as an attorney-at-law in any jurisdiction other than this State may be admitted to practice as such in the courts of this State, as a visiting attorney, or as a resident attorney, upon first complying with the rules and regulations applicable thereto prescribed by the supreme court of appeals of West Virginia, without being required to take the bar examinations of this State, if the other jurisdiction in which *590 such person is already authorized to practice allows attorneys of this State to be admitted to the bar or to practice law in such jurisdiction without making it one of the necessary requirements that attorneys of this State take the bar examinations of such jurisdiction." (Emphasis added) 1

Our Code of Rules for Admission to the Practice of Law, Rule 3.000, et seq., Vol. 1, W.Va. Code p. 576 (Michie 1978 ed.), promulgated by this Court on March 23, 1973, does not contain a negative reciprocity provision.

. See note 1, supra.