In re Integration of State Bar of Oklahoma

• Decision Date: 10 October 1939
• Docket Number: 415.
• Citation: 95 P.2d 113,185 Okla. 505,1939 OK 378
• Parties: In re INTEGRATION OF STATE BAR OF OKLAHOMA.
• Court: Oklahoma Supreme Court

95 P.2d 113

185 Okla. 505, 1939 OK 378

In re INTEGRATION OF STATE BAR OF OKLAHOMA.

No. 415.

Supreme Court of Oklahoma

Oct. 10, 1939

Syllabus by the Court.

1. The Supreme Court is entrusted with the power and duty of determining the qualifications for admission to the bar, and also has the power and duty to determine when those qualifications are wanting, and when the privilege of practicing law has been forfeited.

2. The practice of law and the determination of when the right to practice has ceased are so intimately connected and bound up with the exercise of judicial power in the administration of justice that the right to define and regulate is inherent to the judicial department and belongs to the Supreme Court.

3. The term inherent power of the judiciary means that power which is essential to the existence, dignity and functions of the judiciary.

4. This court having the inherent power to determine the qualifications for admission to the bar, and the power and duty to determine when the privilege of practicing law has been forfeited, has, in the exercise of sound judicial discretion, the power to promulgate rules to create, control regulate and integrate the Bar of the State of Oklahoma.

Original proceeding in the matter of the integration of the State Bar of Oklahoma, wherein the Board of Governors of the State Bar and others filed petitions praying for integration of the Bar by order of the Supreme Court.

Petition granted.

DANNER Justice.

The Legislature of the State of Oklahoma passed an Act in 1929 known as The State Bar Act. Section 4210 et seq., O.S. 1931 5 Okl.St.Ann. § 21 et seq. This Act provided for the creation of the State Bar; created a Board of Governors; provided for qualifications for admission to the Bar; established rules of professional conduct and causes for disbarment.

The Seventeenth Legislature of the State of Oklahoma repealed the State Bar Act (Ch. 22, Art. 1, S.L.1939, § 6, 5 Okl.St.Ann. § 12, note), and such repealing Act became effective July 28 1939, 5 Okl.St.Ann. § 12 et seq.

The Board of Governors of the State Bar, various bar associations of the State of Oklahoma, and individuals, filed petitions herein praying that the Bar of the State of Oklahoma be integrated by order of the Supreme Court. Thereafter the Supreme Court appointed a committee of lawyers, designated as The Executive Council, and this committee likewise petitioned the Supreme Court to integrate the Bar of the State of Oklahoma, and reported its findings to the court that it was for the public interest and for the advancement and administration of justice that the Bar be integrated as a means of combating the unauthorized practice of law and improving the ethical standards of the profession.

Section 1, Article 7, Constitution of Oklahoma, Okl.St.Ann., vests the judicial power of our State in this and other courts named therein, in the following language: "The judicial power of this State shall be vested in the Senate, sitting as a court of impeachment, a Supreme Court, District Courts County Courts, Courts of Justices of the Peace, Municipal Courts, and such other courts, commissions or boards, inferior to the Supreme Court, as may be established by law."

There is no express grant of power in the Constitution of Oklahoma giving to any of the three departments of government the right to define and regulate the practice of law, but the very fact that the Supreme Court was created by the Constitution gives it the right to regulate the matter of who shall be admitted to practice law before the Supreme Court and inferior courts, and also gives it the right to regulate and control the practice of law within its jurisdiction.

The Supreme Court has the right to exercise all powers fundamental to its existence, and it is fundamental that it has the inherent power to regulate admission to the Bar, and to control and regulate the practice of law of those admitted to the Bar. It is not necessary to cite authorities to the effect that attorneys practicing in the courts of this state are officers of the courts, because of their peculiar relationship to the courts and to the public. In general, they are responsible to the courts because their position is one of honor, they are advisers to the courts, and advisers to their clients, and because of those relationships the courts have the right to protect themselves and the public from the acts of their officers.

In the case of Opinion of the Justices, 279 Mass. 607, 180 N.E. 725, 727, 81 A.L. R. 1059, the court used the following language: "Admission to practice as an attorney at law is * * * conceded to be a judicial function. * * * It is an inherent power of such a department of government ultimately to determine the qualifications of those to be admitted to practice in its courts, for assisting in its work, and to protect itself in this respect from the unfit."

The same decision, well supported by authorities, also announced the fundamental rule that courts have the power to remove attorneys. The court said: "No sound distinction can be drawn with respect to attorneys at law between the power to admit and the power to remove under the terms of the Constitution."

In respect to the regulation of admissions to practice, it was said: "No statute can control the judicial department in the performance of its duty to decide who shall enjoy the privilege of practicing law. * * * Statutes respecting admissions to the bar, which afford appropriate instrumentalities for the ascertainment of qualifications of applicants, are no encroachment on the judicial department. * * * Statutes of that nature are valid provided they do not infringe on the right of the judicial department to determine who shall exercise the privilege of practicing in the courts and under what circumstances and with what qualifications persons shall be admitted to that end."

At this time we have no statute providing procedure for disbarment, but the court, having the power to determine who shall be admitted to practice law, and having the power to determine in what manner and under what circumstances persons may be entitled to practice, it follows, by implication, that it has the power and the duty to determine when those qualifications are wanting, and when the privilege of that high calling has been forfeited. It might not be amiss to quote from the opinion of the court in the case of In re Integration of Nebraska State Bar Association, 133 Neb. 283, 275 N.W. 265, 267, 114 A.L.R. 151, wherein the question is extensively discussed:

"In sustaining the Bar Integration Act passed by the legislature of Kentucky, the supreme court of that state said:

'The power to regulate the conduct and qualifications of its officers does not depend upon constitutional or statutory grounds. It is a power which is inherent in this court as a court-appropriate, indeed necessary, to the proper administration of justice. That we have, in deference to the Bar Integration Act (Ky.St. §§ 101-1, 101-2), set up a standing board of commissioners and machinery to conduct and report on investigations concerning the conduct of attorneys, does not alter the fact that we are but exerting an inherent power. * * *

The argument that this is an arbitrary power which the court is arrogating to itself or accepting from the Legislature likewise misconceives the nature of the duty. It has limitations no less real because they are inherent. It is an unpleasant task to sit in judgment upon a brother member of the bar, particularly where, as here, the facts are disputed. It is a grave responsibility, to be assumed only with a determination to uphold the ideals and traditions of an honorable profession and to protect the public from overreaching and fraud. The very burden of the duty is itself a guaranty that the power will not be misused or prostituted. The power is not made arbitrary merely because it exists in this court as well as in other courts of the Commonwealth. If not an arbitrary power in other courts, it is not arbitrary here.' In re Sparks, 267 Ky. 93, 101 S.W.2d 194, 196. See, also, Commonwealth ex rel. Ward v. Harrington, 266 Ky. 41, 98 S.W.2d 53; Clark v. Austin 101 S.W.2d 977.

The claim of inherent judicial power is no novelty. There are many cases in which it has been invoked over the membership of the bar. It has been invoked in the admission, suspension, discipline and disbarment of attorneys and in these no legislative permission is considered requisite, and, if a statute exists, it is regarded as declaratory of the inherent power of the judiciary and not exclusive in its provisions. The term 'inherent power of the judiciary' means that which is essential to the existence, dignity and functions of the court from the very fact that it is a court. In Re Disbarment of Greathouse, 189 Minn. 51, 248 N.W. 735, 737, the court said:

'An attorney is not an officer of the state, in a constitutional or statutory sense of that term, but he is an officer of the court, exercising a privilege during good behavior. This privilege is granted by the court in the exercise of judicial power, not as a mere ministerial power. * * *

The judicial power of this court has its origin in the Constitution, but when the court came into existence, it came with inherent powers. Such power is the right to protect itself, to enable it to administer justice whether any previous form of remedy has been granted or not. This same power authorizes the making of rules of practice.'

It must be borne in mind that attorneys are officers of the court amenable to it as their superior. This is not on the theory that they are agents in the ordinary sense, but because they sustain that close intimate relationship to the bench which can best be...