Bastian v. Watkins, Clerk

187 A.2d 304, 230 Md. 325, 1963 Md. LEXIS 522
CourtCourt of Appeals of Maryland
DecidedJanuary 9, 1963
Docket[No. 52, September Term, 1962.]
StatusPublished
Cited by21 cases

This text of 187 A.2d 304 (Bastian v. Watkins, Clerk) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bastian v. Watkins, Clerk, 187 A.2d 304, 230 Md. 325, 1963 Md. LEXIS 522 (Md. 1963).

Opinions

Horney, J.,

delivered the opinion of the Court.

The primary question presented on this appeal is whether a local rule of the Circuit Court for Montgomery County, regulating who may file pleadings in that court, is valid or invalid. The appeal is from an order of court sustaining a demurrer to the petition of two attorneys at law (David C. Bastían and William J. Rowan) for a writ of mandamus to require the clerk of court (Clayton K. Watkins) to receive a pleading the petitioners desired to file on behalf of a client in the office of the clerk. In effect, the ruling upheld the validity of the rule.

The petitioners, who are residents of Montgomery County, were admitted to practice law by this Court, and are actively engaged in practicing law in the District of Columbia, where [328]*328each maintains a law office. In November of 1961, the petitioners as attorneys for a suitor, signed a declaration in an action at law, and, after exhibiting their certificates of admission to practice law in Maryland, tendered the declaration to the clerk of court, together with the required deposit for costs. But the clerk refused to receive and file the declaration because the petitioners had not complied with the requirements of the local rule.

The local rule (General Rule 3) 1—the validity of which is questioned by the petitioners—forbids the clerk to accept any “court paper” unless it is signed by an attorney, duly admitted to practice by this Court, who has signed the test book and therein certified that he is a resident of Maryland and maintains a bona fide office therein. There is also a requirement that the Maryland office and telephone number be noted on the paper offered for filing. Other parts of the rule define what is meant by a bona fide office and provide that an attorney who is without such an office may file a pleading when he is joined of record by an attorney having a bona fide office in this State.

[329]*329The rule under attack was made under the provisions of Chapter 1004 of the Laws of 1943 (now codified as § 7-15 of Chapter 7 of the Montgomery County Code), which, by its terms authorized and empowered the Circuit Court for Montgomery County “to make rules of court relating to practice before [such] court and relating to admission of attorneys to practice before [such] court.” The statute—which we assume without deciding is a public local law and not a special law as the petitioners contend—further provides, as codified, that “[n]o person shall practice law in the county or appear before any court in the county until he or she shall have first complied with the rules of practice established by the circuit court for the county.”

It has long been recognized that the admission of a resident of Maryland to practice law is a legislative, not a judicial, function in that the right may constitutionally be regulated by statute. See In re Maddox, 93 Md. 727, 50 Atl. 487 (1901). See also In re Taylor, 48 Md. 28 (1877); State v. Johnston, 2 H. & McH. 160 (1786). 2

An excellent summary of earlier as well as later statutes respecting admission to the bar and the practice of law in this State may be found in 52 Transactions of the Maryland State Bar Association (1947), pp. 152-181, but, for the purpose of this case, it will suffice to point out that in the colonial period as in statehood until 1898, the colonial and state Legislatures, by sundry statutes, had authorized the judges of the county courts (and certain designated courts in Baltimore City) to admit applicants to the bar. But in 1898, following a definite trend toward uniformity that apparently began as early as 1831, the Court of Appeals of Maryland was vested with exclusive power to admit applicants to practice law. By Chapter 139 of the Laws of 1898, it was provided for the first time that all applications for admission to the bar should be made by petition to the Court of Appeals, and therein it was further pro[330]*330vided that if the applicant was found to be qualified, of good moral character and worthy of admission, this Court should “pass an order admitting- him to practice in all the courts of the State.”

The broad powers thus conferred have been and are still being exercised by this Court despite the enactment of Chapter 1004 (of the Laws of 1943) authorizing the Circuit Court for Montgomery County (among other things) to make local rules relating to practice before that court and the admission of attorneys to practice law therein. As we read the local rule adopted in pursuance of the local law, it appears to be a “housekeeping” rule aimed, not at the prerogatives of this Court, but primarily at regulating matters of practice and procedure before that court even though in practical use it has had the effect of debarring some duly qualified Maryland attorneys from practicing law in Montgomery County.

There are two principal aspects of the question concerning the validity or invalidity of the local rule: one, whether the local rule contravenes any of the provisions of Code (1957), Art. 10, §§ 1 through 8; and the other, whether the local rule is inconsistent with or has been superseded by the general rules of practice and procedure.

Assuming therefore, as we have indicated, that the local rule is not inconsistent with the general statutory provisions respecting the right and privilege of an attorney to practice law throughout the State, we shall decide the question on the procedural aspects of the rule.

In section 18A of Article IV of the Constitution of Maryland (ratified November 7, 1944), concerning the rule-making power of the Court of Appeals, it is provided (in the last two sentences of the amendment) that:

“The Court of Appeals from time to time shall make rules and regulations to regulate and revise the practice and procedure in that Court and in the other courts of this State, which shall have the force of law until rescinded, changed or modified by the Court of Appeals or otherwise by law,”

and that:

[331]*331“The power of the courts other than the Court of Appeals to make rules of practice and procedure shall be subject to the rules and regulations prescribed by the Court of Appeals or otherwise by law.”

Apart from these constitutional provisions, Code (1957), Art. 26, § 25, in addition to providing that this Court “is authorized and requested to prescribe by general rules, the practice and procedure * * * in all courts of record throughout the State,” expressly provides that such general rules “shall supersede any prior inconsistent public general law, public local law * * * or rule of the Court of Appeals or any other court.”

It is thus apparent that so much of a local rule as well as an existing local law as are contrary to or inconsistent with a general rule of practice and procedure adopted by this Court in pursuance of constitutional and statutory authority, would be superseded by such general rules. Cf. Laurel Canning Co. v. B. & O. R.R., 115 Md. 638, 81 Atl. 126 (1911). More specifically, so much of the local rule (General Rule 3) as requires an attorney to maintain in this State a “bona fide” office with a telephone, as a prerequisite to the filing of a pleading in the Circuit Court for Montgomery County, would be invalid.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Sumpter v. Sumpter
50 A.3d 1098 (Court of Appeals of Maryland, 2012)
In Re Marcus J.
931 A.2d 1146 (Court of Special Appeals of Maryland, 2007)
Application of Kimmer
896 A.2d 1006 (Court of Appeals of Maryland, 2006)
Attorney General of Maryland v. Waldron
426 A.2d 929 (Court of Appeals of Maryland, 1981)
In Re Application of Howard C.
407 A.2d 1124 (Court of Appeals of Maryland, 1979)
Washabaugh v. Washabaugh
404 A.2d 1027 (Court of Appeals of Maryland, 1979)
Owen v. Freeman
367 A.2d 1245 (Court of Appeals of Maryland, 1977)
Mutual Benefit Society of Baltimore, Inc. v. Haywood
263 A.2d 868 (Court of Appeals of Maryland, 1970)
Maryland State Bar Ass'n v. Boone
258 A.2d 438 (Court of Appeals of Maryland, 1969)
Public Service Commission v. Hahn Transportation, Inc.
253 A.2d 845 (Court of Appeals of Maryland, 1969)
Smith v. State
248 A.2d 913 (Court of Special Appeals of Maryland, 1969)
Segal v. American Casualty Company of Reading, Pa.
250 F. Supp. 936 (D. Maryland, 1966)
Good v. State
212 A.2d 487 (Court of Appeals of Maryland, 1965)
Yates v. Villain
215 F. Supp. 573 (D. Maryland, 1963)
Fitzgerald v. Somerset County Sanitary Commission
189 A.2d 601 (Court of Appeals of Maryland, 1963)
Bastian v. Watkins, Clerk
187 A.2d 304 (Court of Appeals of Maryland, 1963)

Cite This Page — Counsel Stack

Bluebook (online)
187 A.2d 304, 230 Md. 325, 1963 Md. LEXIS 522, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bastian-v-watkins-clerk-md-1963.