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

295 S.E.2d 670, 170 W. Va. 583

• Court: West Virginia Supreme Court
• Decided: September 7, 1982
• Docket: 15499
• Status: Published

Opinions

McGRAW, Justice:

This is an original proceeding in mandamus. The petitioner is Daniel V. Lane, a former resident of California who desires to practice law in West Virginia. The respondents are the members of the West Virginia State Board of Law Examiners, the administrative body responsible for the review of applications, the giving of examinations, the investigation of character, and the general evaluation of applicants for admission to the West Virginia State Bar. The petitioner seeks to compel the respondents to grant his application for admission to practice law in West Virginia without examination, and to allow him to be admitted to practice upon motion. Because we find the petitioner ineligible for admission without examination under our Code of Rules for Admission to the Practice of Law, we deny the writ.

The petitioner received the degree of Jur-is Doctor in May of 1975 from the Southwestern University School of Law, located in Los Angeles, California. He subsequently passed the California Bar Examination and was admitted to the practice of law in California in December of 1975. The petitioner was engaged in the active practice of law in California from the date of his admission to the California Bar until November of 1981, when he moved to Clarksburg, West Virginia. The record indicates that the petitioner has remained in good standing throughout his legal career.

In January of 1982 the petitioner submitted to the respondents his application for admission without examination to the practice of law in the State of West Virginia. On January 20, 1982, the respondents notified the petitioner that he could not be admitted on motion, but would be required to take the bar examination. The reason given by the respondents for denying the petitioner’s application was that the petitioner did not qualify for admission without examination under Rule 3.070 of the Code of Rules for Admission to the Practice of Law, which provides, in pertinent part:

No examination shall be required of any applicant ... who has been admitted to practice in another state where requirements for admission at the time of the admission of the applicant in that state where then substantially the same as those of the state in which admission is sought at that time.

The board explained that the requirements for admission to the practice of law in California are not the same as the requirements in West Virginia because “California does not admit attorneys from any state by reciprocity, but requires all applicants to take an examination.”

By letter dated January 30, 1982, the petitioner requested that the respondents reconsider his application. On February 5, 1982, the respondents replied by letter that, upon reconsideration of the petitioner’s application, a majority of the board was of the opinion that the petitioner was not eligible for admission without examination under the provisions of Rules 3.000 through 3.070 of the Code of Rules for Admission to the Practice of Law.

The petitioner contends that he has satisfied all the requirements of Rules 3.000 through 3.070 necessary to entitle him to be admitted to the practice of law in West Virginia without examination, and that the denial of his application for admission without examination deprives him of his livelihood and means of support until at least July of 1982 when the next bar examination is scheduled. He further contends that the denial of his application for admission without examination on the ground of a lack of reciprocity with the State of California constitutes a denial of equal protection of the laws and of due process under the Constitution of West Virginia, and violates the privileges and immunities clause of the Constitution of the United States. The petitioner therefore requests that a writ of mandamus issue ordering that the West Virginia State Board of Law Examiners grant his application for admission to practice without examination, that the reciprocity requirement set forth in W. Va. Code § 30-2-2 (1980 Replacement Vol.) be declared unconstitutional,¹ and that he be awarded costs and such other and further relief as seems just.

Because we find that the petitioner has not satisfied all the requirements imposed by the rules of this Court to entitle him to be admitted to the practice of law without examination, we deny the requested relief without reaching the issue of the constitutionality of the reciprocity requirement contained in W. Va. Code § 30-2-2.

It is indisputable that with the adoption of the Judicial Reorganization Amendment of 1974, this Court became the constitutionally authorized repository of the power to define, regulate and control the practice of law in West Virginia. Prior to adoption of the 1974 amendment, article eight, section one of the West Virginia Constitution provided: “The judicial power of the State shall be vested in a supreme court of appeals, in circuit courts and the judges thereof, in such inferior tribunals as are here authorized and in justices of the peace.” The 1974 amendment changed this language to read: “The judicial power of the State shall be vested solely in a supreme court of appeals.... ” (Emphasis added). The 1974 amendment also added the following language to section three of article eight: “The court shall have power to promulgate rules for all cases and proceedings, civil and criminal, for all courts of the State relating to writs, warrants, process, practice and procedure, which shall have the force and effect of law.” We recently held in State ex rel. Frieson v. Isner, 168 W.Va. 758, 285 S.E.2d 641, 648 (1981) that 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. See also Stern Bros., Inc. v. McClure, 160 W.Va. 567, 236 S.E.2d 222 (1977). Thus, jurisdiction to establish standards for admission to the practice of law in West Virginia is vested in this Court. While the Legislature may enact statutes in aid of the exercise of that jurisdiction, see State ex rel. Frieson v. Isner, supra, the Legislature may not usurp, restrict, or impair the power of the judiciary to regulate the practice of law. See State ex rel. Thorn v. Luff, 154 W.Va. 350, 175 S.E.2d 472 (1970); West Virginia State Bar v. Earley, 144 W.Va. 504, 109 S.E.2d 420 (1959). See also State ex rel. Frieson v. Isner, supra; Pushinsky v. West Virginia Bd. of Law Examiners, 164 W.Va. 736, 266 S.E.2d 444 (1980).

The standards for admission to the practice of law this Court has promulgated include the requirements that applicants hold a baccalaureate or equivalent degree from an accredited college or university, complete a full course of study in a law school accredited by the American Bar Association and the Association of American Law Schools, hold a Juris Doctor or equivalent degree from such law school, and successfully complete the West Virginia Bar Examination. See Rule 1.000, Code of Rules for Admission to the Practice of Law. The purpose of these requirements is to protect the public from being advised and represented in legal matters by unqualified persons. See Rule 4.000, Code of Rules for Admission to the Practice of Law. As was stated in West Virginia State Bar v. Earley, supra, “admission to membership in the legal profession is a privilege granted in the interest of the public to those who are morally fit and mentally qualified for the sole purpose of protecting the unwary and the ignorant from injury at the hands of persons unskilled or unlearned in the law.” 144 W.Va. at 528, 109 S.E.2d at 435. “It is the duty of this Court to scrutinize carefully the qualifications of persons who seek to be admitted to practice before the courts of this State, in order that the public may be protected and the courts assisted in the discharge of the vital duties of the administration of law and the resolving of legal controversies.” In re Eary, 134 W.Va. 204, 208, 58 S.E.2d 647, 650 (1950), quoted in Pushinsky v. West Virginia Bd. of Law Examiners, supra, 164 W.Va. at 746, 266 S.E.2d at 450.

While it is true that four exceptions are made to the examination requirement, these exceptions are entirely consistent with the purpose of our strict admission requirements. The four classes of applicants who may, by Court rule, be admitted to the practice of law in West Virginia without examination are: (1) graduates of the College of Law of West Virginia University, see Rule 1.020, Code of Rules for Admission to the Practice of Law; (2) resident professors of law at the College of Law of West Virginia University who have been full time members of the College of Law faculty for at least five years, see Rule 5.000, Code of Rules for Admission to the Practice of Law; (3) attorneys employed by or associated with an organized legal services program providing legal assistance to indigents in civil matters, and who are admitted before a court of last resort of another state, see Rule 7.000, Code of Rules for Admission to the Practice of Law; and (4) attorneys who have engaged in the active practice of law in a sister state for five years preceding their date of application. See Rule 3.020, Code of Rules for Admission to the Practice of Law.²

Graduates of the College of Law of West Virginia University are exempt from the examination requirement because they are uniquely qualified to practice law in West Virginia. The West Virginia University College of Law is an accredited institution possessing a high quality, proficient program of legal education which, in addition to providing instruction in Anglo-American law, places special emphasis on West Virginia law and procedures. Thus, we take judicial notice that graduates of the College of Law of West Virginia University, because of their unique training in West Virginia jurisprudence, are, at the time of their admission to the West Virginia State Bar, the best qualified of all applicants. Because of their background of superior training for the practice of law in West Virginia they are properly exempt from the examination requirement imposed on other applicants.

Similarly, West Virginia residents who have been full time members of the faculty of the College of Law of West Virginia University for at least five years, are also exempt from the examination requirement. Requiring examination of this class of applicants who have devoted at least five years to the study and teaching of West Virginia law and procedures, would, as in the case of graduates of the College of Law of West Virginia University, be a vain, pointless and uneconomical exercise.

Attorneys of other states who are employed or associated with an organized legal services program are given limited permission to practice law in this State without prior examination in order to expedite the provision of legal services to indigent persons who otherwise would be unable to retain counsel. This overriding policy justifies the relaxation of the examination requirement for this class of applicants who, in any instance, must be members in good standing at the bar of a court of last resort of another state, and must demonstrate their good character in accordance with Rule 2.000.

The final class of applicants who may be admitted to the practice of law in West Virginia without examination are attorneys from other jurisdictions who have been admitted to the practice of law in a sister state and who have actively engaged in the practice of law for a minimum of five years. 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. However, in order to insure the correctness of this presumption, the rules for admission to the practice of law in West Virginia, as promulgated by this Court, require that an attorney who is a member of the bar of a sister state and who desires to be admitted to the practice of law in West Virginia without examination, must bear the burden of showing that the standards for admission in the state where the attorney is admitted are “substantially the same” as the standards for admission in West Virginia. See Rules 3.000 through 3.070, Code of Rules for Admission to the Practice of Law.

Our standards for admission to the practice of law require at a minimum that applicants complete a full course of study in a law school accredited by the American Bar Association and the Association of American Law Schools, and that they hold degrees of A.B. or B.S. and LL.B or J.D., or their equivalent or higher degrees, from an accredited college or university. See Rule 1.000, Code of Rules for Admission to the Practice of Law. These requirements stand in stark contrast to those for applicants in California. California applicants are not required to hold a baccalaureate degree to be eligible for admission, but need only complete two years of college work, or demonstrate an equivalent intellectual ability. See Cal. Bus. & Prof. Code § 6060 (West 1974); Rule VIII, Rules Regulating Admission to Practice Law in California. Neither are California applicants required to complete a course of study in a law school accredited by the American Bar Association and the Association of American Law Schools. Rather, legal study in an unaccredited law school is permitted, see Cal. Bus. & Prof. Code § 6060 (West 1974); Rules IX and XIX, Rules Regulating Admission to Practice Law in California,³ as is study in a law office under the supervision of a licensed attorney or a judge of a court of record, or by correspondence course. See Cal. Bus. & Prof. Code § 6060 (West 1974); Rule IX, Rules Regulating Admission to Practice Law in California. Thus, notwithstanding the affidavit submitted by the petitioner to the contrary, we must recognize that the standards for admission to the practice of law in California in 1975, the time of the petitioner’s admission to the California Bar, were not “substantially the same” as requirements for admission to the practice of law in West Virginia, and continue to differ in their requirements at this time. Thus, under the provisions of Rule 3.070 of the Code of Rules for Admission to the Practice of Law, the petitioner is ineligible for admission to the practice of law in West Virginia without examination.

By our holding we do not in any manner disparage the petitioner with regard to his qualifications or abilities to practice law in this jurisdiction. We simply find that he is ineligible for admission without examination under the rules promulgated by this Court. The record indicates the petitioner is an individual of good moral character with a sound educational and legal background. With proper preparation, he should experience little difficulty passing the West Virginia Bar Examination.

In summary, because the petitioner has not demonstrated a clear right to admission to the practice of law without examination, the writ of mandamus is denied.

Writ denied.

1 . 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 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. The supreme court of appeals of West Virginia shall prescribe specific rules and regulations dealing with the admission of such person from another jurisdiction to practice law in this State either as a visiting attorney or as a resident attorney; and no person from another jurisdiction shall be permitted to practice in the courts of this State in either classification until he has complied with the rules and regulations pertaining to such classification established by the supreme court of appeals. Nothing herein contained shall affect the right or status of attorneys admitted to practice in this State prior to the enactment of this section.

2 . Our rules also permit limited appearances on behalf of indigent persons by eligible law students enrolled in this State in a law school approved by the American Bar Association, and by attorneys who are enrolled in a criminal law or poverty law and litigation graduate program in an approved law school. See Rules 6.000 and 7.000, Code of Rules for Admission to the Practice of Law.

3 . California is noted for its unaccredited law schools. Of the fifty-six unaccredited law schools extant in the United States, thirty-nine, or more than 69 percent, are located in California. See American Bar Association, A Review of Legal Education in the United States — Fall 1980-81, Law Schools and Bar Admissions Requirements at 45-48 (1981).