Brown, Application of

• Decision Date: 09 October 1972
• Citation: 191 S.E.2d 812,213 Va. 282
• Parties: Application of Allison W. BROWN, Jr., for Admission to Practice Pursuant to Rule 1A:1.
• Court: Virginia Supreme Court

Page 812

191 S.E.2d 812

213 Va. 282

Application of Allison W. BROWN, Jr., for Admission to Practice Pursuant to Rule 1A:1.

Supreme Court of Virginia.

Oct. 9, 1972.

Allison W. Brown, Jr., pro se.

Stuart H. Dunn, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., Vann H. Lefcoe, Asst. Atty. Gen., on brief), for the Commonwealth.

Before SNEAD, C.J., and I'ANSON CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

CARRICO, Justice.

This matter involves the question of the validity of certain of the provisions of Rule 1:5 (now Rule 1A:1 ¹), Rules of Court, applicable to the admission of foreign attorneys to practice law in this state without examination. Under the rule, as prerequisite to such admission, this court must determine that an applicant intends 'to practice full time as a member of the Virginia bar.' Rule 1A:1(4)(d), formerly Rule 1:5(4)(d).

On January 8, 1971, Allison W. Brown, Jr., a member of the bar of the United States Court of Appeals for the District of Columbia, filed with this court an application for admission to practice without examination pursuant to Rule 1:5. In his application, Brown stated that he was a permanent resident of Virginia and that he intended to practice full time as a member of the Virginia bar.

Brown's application was processed, and it was learned that he was employed as a Supervisory Attorney in the Appellate Court Branch of the National Labor Relations Board, Washington, D.C. In subsequent correspondence with the court regarding his plans, Brown stated that he did not intend to resign his employment and made it clear that, if admitted, he did not intend to practice full time as a member of the Virginia bar. On June 1, 1971, Brown was notified that his application had been refused because of his failure to comply with Rule 1:5(4)(d).

Following refusal of his application, Brown filed an action in the United States District Court for the Eastern District of Virginia against this court and its members. In that action, Brown attacked the constitutionality of our rule applicable to the admission of foreign attorneys without examination.

A three-judge court was convened, and on May 17, 1972, the court granted a motion, filed on our behalf, for abstention upon our representation that Brown would be permitted to file with this court a petition for reconsideration of his application for admission. Brown filed the petition with us, the Virginia State Bar was granted leave to file a brief Amicus curiae, and the matter was argued orally. The argument centered around the same points of alleged unconstitutionality of our rule as were presented in the action filed in the District Court.

Brown contends that our rule is unconstitutional because it denies him due process and equal protection of law. He argues, citing Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957), that the only matters into which we may properly inquire are his fitness and capacity to practice law, and he asserts that the rule requiring him to show that he intends to practice full time as a member of the Virginia bar has no rational connection with those matters. ²

Our research has disclosed no decision directly in point upon the constitutional questions raised by Brown. The Schware case, relied upon by Brown, did not involve a denial of admission to practice law for failure to comply with a rule similar to our Rule 1A:1(4)(d). Instead, the case involved the denial by the Board of Bar Examiners of New Mexico of Schware's application to take the bar examination, the denial having been based upon the prior use of aliases by Schware, his former membership in the Communist Party, and a record of previous arrests. The Supreme Court held that refusal of Schware's application upon these grounds was a denial of due process and equal protection. In its opinion, the court did say, as Brown points out, that while a state may require high standards of qualification for admission to the bar, any qualification must have a rational connection with his fitness and capacity to practice law.

We think the Schware case supports our rule, contrary to what Brown argues. In our view, there is a rational connection of a full-time practice requirement with the qualification of capacity to practice, and we think later important action of the United States Supreme Court sustains this view.

Following Schware, the Supreme Court, in Martin v. Walton, 368 U.S. 25, 82 S.Ct. 1, 7 L.Ed.2d 5 (1961), dismissed for want of a substantial federal question an appeal it had awarded from a decision of the Supreme Court of Kansas. The Kansas court's decision, reported under the name of Martin v. Davis, 187 Kan. 473, 357 P.2d 782 (1960), involved equal protection and due process attacks upon a Kansas rule and statute. The rule and statute provided in substance that 'an attorney admitted to the Bar of Kansas who has been admitted to the Bar of another state and who is regularly engaged in the practice of law in that state shall associate local counsel before he can appear in the courts or before boards or commissions of Kansas.' 187 Kan. at 475, 357 P.2d at 785.

The Kansas litigation began when Martin brought a mandamus action to compel a Kansas probate judge to permit him to file cases and to appear any try them without the association of local counsel. Mandamus was denied by the state district court, the Supreme Court of Kansas affirmed, and, as has been noted, the United States Supreme Court dismissed Martin's appeal for want of a substantial federal question.

The facts were interesting. Martin graduated from the University of Kansas Law School and was shortly thereafter licensed to practice law in Kansas and Missouri. He lived in Mission, Kansas, maintained an office there, and was attorney for that city. He was a member of the State Board of Tax Appeals of Kansas and of the state and local bar associations of Kansas. He had written an article on Kansas procedure which was published in the Kansas Law Review. But because he regularly practiced in the neighboring state of Missouri, Martin was denied the right to appear in Kansas courts without local counsel.

In dismissing Martin's appeal, the United States Supreme Court, citing Schware v. Board of Bar Examiners, Supra, stated that the Kansas rule and statute were 'not beyond the allowable range of state action under the Fourteenth Amendment.' 368 U.S. at 25--26, 82 S.Ct. at 2. The court further said that it could not 'disregard the reasons given by the Kansas Supreme Court for the Rules in question.' 368 U.S. at 26, 82 S.Ct. at 2. We will advert to those reasons later.

We view the Martin case important because the Kansas Supreme Court recognized that the rule and statute there in question created two classes of attorneys. In the one class were the members of the Kansas bar regularly engaged in the practice of law in another state, who were required to associate local counsel, and in the other were the members of the Kansas bar not regularly engaged in the practice of law elsewhere, who were not so required. The court held that the difference between the two classes rested upon a consideration which was real and not fanciful, justifying different treatment of the two.

Here, Brown contends, and rightly so, that Virginia has created two classes of attorneys. The first encompasses those attorneys licensed by examination (Code §§ 54--60 to 54--66), and the second includes those licensed without examination. As to the first class, there is no requirement of a preadmission showing of intent to practice full time as a member of the Virginia bar. As to the second, the requirement is imposed. ³

Brown argues that this classification by Virginia is arbitrary. We disagree. We believe there is a real difference between the two classes, just as there was in Martin, and that the same considerations which upheld the different treatment in Martin uphold the different treatment here.

Brown stands in the same shoes as did Martin. Brown wants to remain regularly employed in activity other than practice in Virginia and yet practice here, without restriction, when the occasional opportunity arises. ⁴ That is exactly that Martin wanted--to practice regularly in Missouri and occasionally, without restriction, in Kansas. The same reasons prompting restriction of Martin's occasional practice in Kansas prompt denial of Brown's present application for admission.

The reasons advanced by the Kansas Supreme Court for its rule and statute were: difficulty in securing the presence of the attorneys officed in Missouri at the call of court dockets; inability to procure service on the Missouri-officed attorneys without having to proceed to another state; failure of the Missouri-based...