In Re Application of RGS

541 A.2d 977, 312 Md. 626, 1988 Md. LEXIS 84

• Court: Court of Appeals of Maryland
• Decided: June 6, 1988
• Docket: Misc. No. 2, September Term, 1988
• Status: Published

Opinions

ADKINS, Judge.

As a general rule, a person may not practice law in Maryland until he or she has been admitted to the Bar of this State. Md.Code (1987 Repl. Yol.) Art. 10, § 1. And as a general rule, admission to the Bar of this State is achieved either through successful passage of the regular bar examination (Art. 10, § 3, and Rule 7, Rules Governing Admission to the Bar [hereinafter Bar Admission Rules]), or pursuant to Bar Admission Rule 14 (hereinafter Rule 14). See also Art. 10, § 7(a). This case concerns Rule 14. The rule permits admission in Maryland upon successful completion of an abbreviated examination if the applicant, among other things, has been admitted, by examination, to the “Bar of another State, District or Territory of the United States” (Rule 14 a, m), and if he or she “for at least five of the seven years immediately preceding the filing of his [or her] petition [for admission in Maryland] ... has been regularly engaged in any of the following activities: as a practitioner of law; as a full-time teacher of law at a law school approved by the American Bar Association; or as a judge of a court of record.” Rule 14 a (iii).

R.G.S. (the applicant) applied for admission under Rule 14. The State Board of Law Examiners recommended that he not be admitted. The matter is before us on the applicant’s exceptions to the board’s report. Rule 14 h.

There is no dispute about the applicant’s legal career. In 1955, following graduation from the University of North Carolina School of Law, he was admitted to the North Carolina Bar by examination. For the next five years, he was assistant director of the Institute of Government and assistant professor of public law and government at the University of North Carolina. For the four years after that, he was an assistant professor at the University of Georgia School of Law. From 1964 to 1969 he was in private practice in North Carolina. In the latter year he came to Maryland as a full-time professor of law at a law school in Baltimore, and he served in that capacity (with significant legal “extracurricular” activities) until June of 1983. In that month he became a part-time adjunct law professor at the law school and also “of counsel” on a full-time basis to an Annapolis law firm. Those arrangements apparently still continue; in any event, they were operative on 22 December 1986, when the applicant filed his application for admission under Rule 14. This summary biography, augmented by material in the board’s files, thoroughly justifies the board’s conclusion that “[s]ince [1955, the applicant] has devoted his professional life to the law.”

What, then, is the problem? Rule 14 a (iii) and (iv) require five years of prescribed activity “within seven years immediately prior to the filing of ... [an applicant’s] petition.” If one of those activities is teaching law, it must be full-time. Rule 14 a (iii). The seven-year period carries us back to December 1979. From that month until June 1983, the applicant was teaching law full-time—a period of approximately three and a half years. But at the end of that period, his teaching became part-time and thus no longer creditable for Rule 14 purposes. The remainder of the essential five years would have to be based on the theory that the applicant’s work at the Annapolis law firm, from June 1983 onwards, amounted to being “regularly engaged ... as a practitioner of the law.”

The Board of Law Examiners thought that if “Rule 14 provided for admission by acclamation, clearly ... [the applicant] would have been admitted forthwith.” Nevertheless, it concluded that his law firm work was not the practice of law for Rule 14 purposes. And it further concluded that if what he had done was in fact the practice of law, then it was unauthorized practice, and for that reason could not “be recognized by the Board for purposes of Rule 14.” We shall consider these positions of the board in order.

I. Practice of Law

A requirement of practice of law for some specified period of time is common in rules dealing with bar admission without full examination. See Annotation, “Validity, Construction, and Effect of Reciprocity Provisions for Admission to Bar of Attorney Admitted to Practice in Another Jurisdiction,” 14 A.L.R.4th 7, 13 (1982). Our earlier cases suggest that a reason for the practice requirement was to put the applicant to the test of the reputation he or she would acquire through the practice of law in a single jurisdiction. In re Lohmeyer, 218 Md. 575, 578, 147 A.2d 703, 705 (1959); Edmonds v. Webb, 182 Md. 60, 63, 32 A.2d 702, 703 (1943). But Rule 14 no longer requires five years of practice in a single jurisdiction or in the state of original admission; that requirement was removed in 1980. 8 Md. Reg. 17 (January 9, 1981).

In any case, the principal policy underlying the rule arises from the notion that “it is not unreasonable to assume that lawyers who have been able to sustain themselves by practicing for a number of years in one or more jurisdictions, whether as general practitioners, specialists, house counsel or government employees, possess ... [the skills tested for on the bar examination] in reasonable degree.” Adkins, “What Doth the Board Require of Thee?” 28 Md.L.Rev. 103, 112 (1968) (hereinafter “Bar Admissions”). See also In re Application of Mark W., 303 Md. 1, 8-9, 491 A.2d 576, 579-580 (1985) (quoting out-of-state cases to the same effect). In other words, the “consideration ... should be whether the applicant has sufficient professional experience to give a reasonable assurance of at least that degree of basic legal ability and perceptiveness measurable by a bar examination.” “Bar Admissions,” supra, 28 Md.L.Rev. at 113. In that situation, a new “full” bar examination is dispensed with.

That policy is easy enough to state; it is not so simple to define what is the practice of law within the context of the policy. Indeed, in Mark W., supra, we eschewed any attempt to define the term:

We and the Board of Law Examiners must draw a line between what is and what is not “the practice of law” so as to qualify under the statute [Art. 10, § 7] and the rule. No broad rule can be laid down, as the cases illustrate. Rather, each application must be judged on its own facts.

303 Md. at 18, 491 A.2d at 585. Rule 14 d likewise propounds no precise definition:

For purposes of this Rule a practitioner of the law is defined as a member of the Bar of another State, District or Territory of the United States including Puerto Rico who throughout the period specified in the petition has regularly engaged in the practice of law within the United States and its territories ... as the principal means of earning his livelihood and whose entire professional experience and responsibilities have been sufficient to satisfy the Board that the petitioner should be admitted under this Rule. The Board may consider, among other things,

(i) the extent of the petitioner’s experience in general practice;

(ii) if the petitioner is or has been a specialist, the extent of his experience and reputation for competence in such specialty;

(iii) if the petitioner is or has been an employee of a law firm, government or a corporation or other employer, the nature and extent of his professional duties and responsibilities, as such employee, the extent of his contact with and responsibility to clients or other beneficiaries of his professional skills, the extent of his professional contacts with practicing lawyers and judges and his professional reputation among them and

(iv) any professional articles or treatises of which the petitioner has been the author.

In the case before us, does the applicant’s work with the Annapolis law firm qualify as the practice of law because it demonstrates a degree of professional proficiency sufficient to make a full bar examination redundant? We turn to the relevant facts, chiefly as revealed in the transcript of the applicant’s hearing before the Board of Law Examiners.

In 1981, when the applicant was still a full-time professor of law, the Annapolis law firm where he now works consulted him about a particular case. Both parties enjoyed the relationship and in 1983, the applicant was “asked ... to join the firm as an employee serving the lawyers of the firm and in a full-time capacity____” As we have seen, the applicant accepted this invitation.

He was listed on the firm’s letterhead as “of counsel.” ¹ He viewed himself as

counsel to the firm. In that concept I am the firm’s attorney. I’m not able to do the firm’s work outside of the firm. I can’t take the firm’s business to court, but I’m the firm’s attorney in the sense that I counsel the firm on legal matters involving the firm and the firm’s clients’ business.

More specifically, the applicant said he would

sit with the lead attorney from the firm on the case and we would go through the facts of the case and I would participate in an analysis of the case. I would articulate what I thought were the proper legal approaches to it, what I thought were the most likely potential remedies for whatever the problem happened to be and frequently do a great deal of research to support with authority what I had suggested.

Additionally, the applicant drafted pleadings and supporting memoranda of law and briefs, all under the supervision of licensed Maryland lawyers, who signed the documents. And he supervised the research activities of associates and paralegals in the firm. But he did not directly advise the firm’s clients, nor did he appear in court, save on a few occasions, when he was admitted pro hac vice, pursuant to Bar Admission Rule 20, to argue cases in the Court of Special Appeals.

The Board of Law Examiners conceded that the applicant was “a distinguished ... lawyer and ... law professor who has contributed to the law profession in this State [and who] performs superior legal work for his firm.” But it concluded that this legal work was not “the practice of law.” This conclusion it reached because it did not regard the work of a law clerk as the practice of law and because the applicant was not directly involved in responsibility to the firm’s clients: “The Hallmark of the practicing lawyer is responsibility to clients regarding their affairs, whether as advisor, advocate, negotiator, as intermediary between clients, or as evaluator by examining a client’s legal affairs.”

There is certainly precedent for the notion that a research assistant in a law firm is not practicing law. For example by order dated 2 April 1973 we denied Rule 14 admission to Elmer M., pursuant to a board report recommending denial for that reason. On 26 November 1968 we denied admission to Charles Lee N. As to private practice, the board (in recommending denial) observed that Mr. N. spent some time in research and brief writing, but that this work “could have been performed by a law clerk or law student—not necessarily a member of the Bar.” Board of Law Examiners report of 11 October 1968 at 11. And see Petition of Nenno, 472 A.2d 815, 819-820 (Del.1983) (for purposes of Delaware admissions rule, “a practice of law” means much more than merely working with legally-related matters).

But the applicant now before us obviously was not performing as a paralegal or a “mere” law clerk. True, he did research and wrote memoranda, functions that a paralegal, clerk or law student can do, within the limits imposed by training, skill, and experience. The applicant’s work of that sort, however, was clearly on the highest level, and geared to the advice he furnished partners in the firm as to litigation strategy and the like. Surely if a partner in a law firm, admitted to the bar by examination (as the applicant was admitted in North Carolina), does his or her own research and brief writing, that partner is practicing law. It is not so much the nature of the function as the level at which it is performed that is decisive here.

With respect to the board’s stress on the importance of attorney-client relationships, for that too, there is some precedent. We refer again to the case of Charles Lee N., who had done some legal writing that he claimed was the practice of law. The board (somewhat like the board in the case before us) thought that “legal writing” did not qualify, because “ ‘practice’ in ... [Rule 14] is meant in its ordinary sense—that is, of one performing professional services for a specific client ‘or other beneficiar(y)’ in connection with a specific legal problem____” Board of Law Examiners report of 11 October 1968 at 9.

We do not downplay the importance of the attorney-client relationship as one means of testing whether a person is engaged in the practice of law. See Rule 14 d (iii). And under some prior versions of Rule 14, that test might have been critical. See “Bar Admissions”, supra, 28 Md.L.Rev. at 109-110, and Board of Law Examiners report of 9 October 1967, concerning the admission of Ruth E.D. (denied by order dated 21 November 1967) (discussing history and development of Rule 14). But in terms of the Charles N. report, the present applicant was performing legal services for a specific “beneficiary”—the law firm that employed him. And in this case, for purposes of Rule 14 we do not think that the existence of lawyer-client relationships is the sine qua non for the practice of law. Rule 14 does not say so. As we have stated earlier, the purpose of the rule is to require only enough “practice” (practical experience) to demonstrate no need to take a “full” bar examination. In demanding more than that, we think the board misconstrued Rule 14.

We hold that on the record before us, the applicant was practicing law, within the meaning of that rule, from June 1983 until the date he submitted his petition for admission on 22 December 1986. This period of practice, added to his full-time professorship, adds up to the requisite five years within the seven years prior to December, 1986. See Rule 14 a (iv).

II. Unauthorized Practice and Rule 14

But there is another problem to address. As an alternate ground for its adverse recommendation, the board said that even if the applicant was engaged in the practice of law from mid-1983 to December 1986, it would not count that time, because it was, in the board’s view, the unauthorized practice of law.

Once again, the board’s view is not without support. In the case of Robert Melvin K., for instance, the board concluded that a substantial period of Mr. K.’s claimed five years of practice had been performed in Maryland in violation of Art. 10, § l.² The board further opined that “such period of practice cannot be counted to satisfy the practice requirements of Rule 14.” Board of Law Examiners report of 23 September 1977 at 1. The board also believed Mr. K.’s entire experience to be insufficient to justify admission under the rule. We denied admission by order dated 3 January 1978. Of similar purport seem to be the cases of John 0. (admission denied 10 May 1985) and Michael Irving H. (admission denied 9 January 1980). But see the board’s recommendation in Alan S.D., dated 6 June 1977, where it counted as the practice of law for Rule 14 purposes litigation by a non-Maryland attorney in the United States District Court for the District of Maryland.

Nor is the board’s position in this case unique to Maryland. As the Supreme Court of Arkansas has reasoned:

It was never intended that the requirement of three years of active practice of law [required for admission on motion by Arkansas Bar Admission Rule XI] could be met by practice in Arkansas. This could only be done by engaging in the unauthorized practice of law. Such a construction of the rule would result in an absurdity.

Undem v. State Bd. of Law Examiners, 266 Ark. 683, 696, 587 S.W.2d 563, 570 (1979). See also In Re: Petition of Olsen, 112 R.I. 673, 674-675, 314 A.2d 140, 141 (1974). But see Application of Brewer, 506 P.2d 676, 678-679 (Alaska 1973) (service as Alaska judge, by one not admitted to Alaska bar, counts for purposes of admission on motion); and Sullivan v. Kentucky State Bd. of Bar Examiners, 563 S.W.2d 713 (Ky.1978) (under Kentucky SCR 2.110, providing that “active engagement in the teaching of the law shall be considered active engagement in the practice of law,” teacher who taught at Kentucky law school for requisite period, while not licensed in Kentucky, would be admitted).

The Attorney General has opined that

anyone practicing any type of law or giving any type of legal advice in Maryland for remuneration must first be admitted to the Maryland Bar____ [Article 10, § l’s] broad prohibition against the unauthorized practice of law clearly purports to encompass within its application all law____

61 Op. Att’y Gen. 43, 44 (1976). Under that reasoning, the applicant before us was engaged in unauthorized practice from mid-1983 at least until the date of his petition. If the practice was unauthorized, the precedents suggest, that time should not be counted. But the Attorney General’s ¿weeping language cannot be read literally.

For example, among the activities included within “practice of law” by Article 10, § 1 is the preparation, for remuneration, of “any written instrument affecting the title to real estate____” See n. 2, supra. A legal secretary, working for a weekly wage, would violate the literal language of this prohibition by typing a deed. Law clerks and others who undertake various tasks under the supervision of licensed lawyers might also be involved in unauthorized practice. The Attorney General himself has recognized that a phrase such as “practice of law” may mean different things in different contexts. 68 Op. Att’y Gen. 48, 54-65 (1983). There the Attorney General explained that the phrase “practiced law in this State for at least ten years” as used in Article Y, § 4 of the Constitution, prescribing the qualifications for the office of Attorney General, means something quite different from (and much less restricted than) the meaning of “practice of law” for purposes of Rule 14 or unauthorized practice. Id. at 54-65 & n. 13. “ ‘[Literalism and verbalism must yield to the essential and underlying claims of the people of the State to have a reasonable and effective government.’ ” Id. at 58 (quoting County Commr’s v. Supervisors of Elec., 192 Md. 196, 208, 63 A.2d 735, 740 (1949)).

A similar distinction was drawn in Gazan v. Heery, 183 Ga. 30, 42, 187 S.E. 371, 378 (1936). That case involved a statutory qualification for the office of chief judge of the Municipal Court of Savannah: practice of law for at least five years. Heery was appointed chief judge, and counted as part of the five years his prior service as an associate judge of the court. But another statute prohibited a municipal court judge from practicing law, so it was asserted that Heery lacked the necessary period of practice. The Supreme Court of Georgia rejected this argument:

The words “practice of law” may have an entirely different meaning in a statute designed to prevent the practice of law by one not qualified to do so, from that which the same expression should have in determining qualification to hold judicial office. Words may be given one meaning in one statute, and an entirely different meaning in a different statute, determined by the character and purpose of the legislation. While a judge of the municipal court may not be engaged in the practice of law in the ordinary sense, yet he is dealing with the law, and acquiring by decision and disposition of cases ... knowledge and experience in law ... [that] may enhance his qualifications more than an active practitioner at the bar during the same period.

183 Ga. at 42, 187 S.E. at 378.

We are persuaded that “practice of law” as used in the unauthorized practice statutes need not be read as synonymous with “practice of law” as used in Rule 14. The question is the goal or objective of each enactment and the context within which the words are used. See Kaczorowski v. City of Baltimore, 309 Md. 505, 513-514, 525 A.2d 628, 632 (1987). The goal of the prohibition against unauthorized practice is to protect the public from being preyed upon by those not competent to practice law—from incompetent, unethical, or irresponsible representation. 68 Op. Att’y Gen. at 63 n. 13. See also Undem v. State Bd. of Law Examiners, supra, 266 Ark. at 695, 587 S.W.2d at 569; and Appell v. Reiner, 81 N.J.Super. 229, 236, 195 A.2d 310, 314 (Ch.Div.1963), rev’d on other grounds, 43 N.J. 313, 204 A.2d 146 (1964). The purpose of the practice requirement in Rule 14, as we have seen, is to assure a minimum degree of legal competence: “to support a presumption ... that ... [the] applicant is competent in the law on the basis of his experience in practice as well as his success in another State’s ‘full’ bar examination.” In Re Huntley, 424 A.2d 8, 11 (Del.1980).

The goal of the unauthorized practice statute is achieved, in general, by emphasizing the insulation of the unlicensed person from the public and from tribunals such ' as courts and certain administrative agencies. See Lukas v. Bar Ass’n of Mont. County, 35 Md.App. 442, 443-445, 371 A.2d 669, 671 (1977). The Rule 14 goal is achieved by looking at the actual significance of the legal work that the applicant proffers to show compliance with the “practice of law” requirement. In this case, significant legal work was performed by one already admitted to practice by examination in another state. That work was performed in a way that insulated the practitioner from direct contact with lay clients and the courts and administrative tribunals. The work also was done under the supervision of a licensed Maryland lawyer. Under these circumstances, that work may be actual practice within the meaning of Rule 14, but not unauthorized practice within the meaning of Art. 10, § 1.

Maryland provides for various activities that might be deemed or clearly are the practice of law, but are not unauthorized practice. See, for example, Bar Admission Rules 18 (Legal Assistance by Law Students), 19 (Special Permission for Out-of-State Attorneys to Practice in This State), and 20 c (Special Admission of Out-of-State Attorneys). The first two rules call for the permitted legal work by non-members of the Maryland Bar to be performed under the supervision of a member of the Maryland Bar. The third requires Maryland counsel to participate in court or agency proceedings with the pro hac vice lawyer, unless the tribunal waives that presence. And Article 10, § 32 (b) expressly excludes from the unauthorized practice prohibition the work of “an attorney duly admitted to the highest court of another state ... [who is] acting as corporate house counsel in the State of Maryland so long as the activities of such corporate house counsel within the State of Maryland are limited to the giving of advice to the corporation for which that attorney is employed and do not include appearances in the courts, State agencies, or commissions of this State unless the attorney is specially admitted in a case.”

The supervised aspect of this applicant’s employment comports with the policies established in Bar Admission Rules 18, 19, and 20. Moreover, despite the board’s contrary view, we believe his activities were very close to those of corporate house counsel, and thus consistent with the policy of § 32(b).³ The applicant’s legal advice was given only to the firm, just as house counsel’s advice would be given to the employing corporation. In short, the unprotected public simply was not exposed to danger by the applicant’s activities; at the same time, those activities were sufficient to constitute the practice of law for Rule 14 purposes.⁴

Because the applicant’s work for the law firm is full-time, it seems clear that it is “the principal means of earning his livelihood____” Certainly, no question has been raised as to this, nor does it seem in doubt that his “entire professional experience and responsibilities have been sufficient to satisfy the Board that [he] should be admitted under” Rule 14, save only the board’s reservations as to the work done at the Annapolis firm since June 1983.⁵

Since, as we have explained, we find that the applicant’s full-time work with the Annapolis law firm constitutes the practice of law under Rule 14, we hold that the applicant, who has already passed the attorney’s examination, is entitled to be admitted to the Bar of this State upon completion of the necessary formalities.

THE EXCEPTIONS TO THE REPORT OF THE BOARD OF LAW EXAMINERS ARE GRANTED. THE APPLICANT SHALL BE ADMITTED TO THE BAR OF MARYLAND UPON TAKING THE PRESCRIBED OATH.

1 . Neither the propriety of this description of the applicant’s position in the firm, nor the propriety of the firm’s failure to disclose on its letterhead that he was not admitted in Maryland is before us. But see Rules 7.1 and 7.5 of the Rules of Professional Conduct and former Disciplinary Rule 2-102 (C).

2 . Art. 10, § 1 provides:

A person, except as provided in § 14A of Article 27 of the Annotated Code, may not practice the profession or perform the services of an attorney-at-law within this State without being admitted to the bar as hereinafter directed; and any person who shall give legal advice, represent any person in the trial of any case at law or in equity ... or prepare any written instrument affecting the title to real estate, or give advice in the administration of probate of estates of decedents in any of the orphans’ courts of this State, for pay or reward, shall be deemed an attorney-at-law for purposes of this article. The provisions of this section do not apply to § 32 (b) [dealing with certain corporate house counsel].

See also Md. Code (1987 Repl.Vol.) Art. 10, § 32 (a):

Any person who exacts, demands, takes, or receives from any person whatsoever any fee, gratuity, gift or reward for his advice or service as an attorney at law without having been admitted to the bar agreeably to the provisions of this article is guilty of a misdemeanor____

And see Rule 5.5, Rules of Professional Conduct.

3 . In fact, the firm that employs the applicant became a professional association in 1985. See Md. Code (1985 Repl.Vol., 1987 Cum.Supp.) §§ 5-101 et seq. of the Corps. & Ass’ns Art. Such a professional association perhaps could employ house counsel not admitted in Maryland if it wished to do so. Md. Code (1987 Repl.Vol.) Art. 10, § 32(b). But the question of whether or not the applicant’s full-time position with the Annapolis firm can be analogized to that of corporate house counsel is one that we need not now decide.

4 . Article 10, § 11 makes it a misdemeanor for a lawyer to practice "during the time of his suspension, inactive status, or disbarment.” Nothing we have said here should be construed as permitting a disbarred or suspended lawyer, or one who is on inactive status, to engage in the practice of law, whether under supervision or otherwise.

5 . As a matter of the construction of Rule 14 when the board considered the applicant’s "entire professional experience and responsibilities” for the purposes of the practice of law requirement, it should have taken into account his part-time teaching beginning in mid-1983. The rule establishes three categories of activity that may be used to qualify for admission without full examination; one is service “as a judge of a court of record”; another is "full-time teaching] of law” at an ABA approved law school; and the third is the actual practice of law. The first and second are not defined as constituting the practice of law, and so far as teaching is concerned, nothing but full-time teaching will satisfy the requirement for work in that category. But when the board is looking to the practice category, and it is directed by the rule to look to an applicant's "entire professional experience," there is no reason why it should not include part-time teaching in the calculus. Teaching law at an approved law school, whether part-time or full-time, is another legally significant activity that does not constitute the unauthorized practice of law.