Mark W., Application of

• Decision Date: 01 September 1984
• Docket Number: No. 15,15
• Parties: In the Matter of the Application of MARK W. For Admission to the Bar of Maryland. Misc.,
• Court: Maryland Court of Appeals

Page 1

303 Md. 1

491 A.2d 576

In the Matter of the Application of MARK W. For Admission to

the Bar of Maryland.

Misc. No. 15, Sept. Term, 1984.

Court of Appeals of Maryland.

April 26, 1985.

C. Christopher Brown, Baltimore (Brown & Goldstein, Baltimore, on brief), for applicant.

Argued before MURPHY, C.J., SMITH, ELDRIDGE, COLE and RODOWSKY, JJ., and CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals (retired), Specially Assigned and JAMES C. MORTON, Jr., Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

SMITH, Judge.

We shall here hold that employment as a hearing examiner for the Maryland Department of Employment and Training does not constitute practice of law so as to permit an individual to become a member of the Maryland Bar without taking the usual bar examination.

Maryland Code (1957, 1981 Repl.Vol.) Art. 10, § 7 provides in pertinent part:

"[A] member of the bar of any state, district or territory of the United States, who, for five of the preceding seven years, has been engaged as a practitioner, judge or teacher of law, shall be admitted to the bar of this State after having satisfactorily passed an examination given by the State Board of Law Examiners.... The Court of Appeals may make rules for the content and administration of the examination ... and any other rules necessary to provide for the admission to the bar of persons making application for admission on the basis of this subsection."

Rule 14 a (iii) of the Rules Governing Admission to Bar states in pertinent part that an applicant shall indicate "that for at least five of the seven years immediately preceding the filing of his petition he has been regularly engaged ... as a practitioner of law...." The term "practitioner of the law" is defined by Rule 14 d

"as a member of the Bar of another State, District or Territory of the United States ... 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." (Emphasis added.)

Subsection d further states that 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 speciality;

"(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 contacts 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."

Rule 14 g places "[t]he burden ... on the petitioner to establish his qualifications for admission under ... Rule ." ¹

The applicant testified before the State Board of Law Examiners:

"Well, for the record, I took the [regular bar] exam eight times. I took the exam twice in '73, twice in '74, once in '75, once in '76 and twice in '77. Out of the eight grades, they were in the 190's. One of them I remember being a 197, one being a 199 and a half on the essay portion. I passed all eight multi-state. It was at times I was just so close that it just didn't make sense to stop.

"The other grades I remember, three were in the 180's, I think one in the 170's and one in the 160's."

He sat for and passed the Pennsylvania bar examination in the summer of 1974 and was admitted to practice in Pennsylvania on January 3, 1975. He has carried on a very limited practice in Pennsylvania since that date. He does not seek admission in Maryland on the basis of that practice but upon the basis of his employment as an examiner.

The applicant has been a hearing examiner with what is now the Maryland Department of Employment and Training since October 1975. Originally he was a Hearings Officer II and Hearing Examiner II for the Appeals Division of the Employment Security Administration. As the Board put it:

"The evidence further reflected that the Applicant's job classification in 1975 required him to be an attorney licensed to practice law. Subsequent to July, 1980, the requirement that a hearings examiner be licensed to practice law was deleted and replaced by the current requirement that the hearings officer be a graduate of an accredited law school."

The applicant described his present duties in what he submitted to the board:

"Since February 1, 1982 I have served as a Hearing Examiner III and the supervisor of all the Hearing Examiners in the Appeals Division. In that capacity I supervise approximately 15 Hearing Examiners who decide the first level of administrative appeals under Article 95A of the Maryland Unemployment Insurance Law. All these examiners, except for one, are lawyers. Approximately 350 decisions are issued each week by the Hearing Examiners in these cases involving appeals from both the claimants for benefits and their employers. The Hearing Examiner decisions can be appealed to the Board of Appeals of the Employment Security Administration and then to the Circuit Courts throughout the State. I assign the cases to the Hearing Examiners, review their decisions, provide guidance on issues that arise and assist in the development and conduct of training programs. In my review of decisions I must be sure that they comply with recent Maryland court and Board of Appeals decisions. Frequently I respond to questions from attorneys and the Examiners concerning requests for subpoenas and other issues as to the conduct of these quasi-judicial proceedings. I receive assistance in this activity from the Attorney General's Office which represents the Board of Appeals and the Employment Security Administration in court. In this capacity I report directly to the Chairman of the Board of Appeals and the Appeals Counsel for the Board."

The applicant described his prior duties to the Board:

"From October 23, 1975 to January 31, 1982 I served as a Hearings Officer II and Hearing Examiner II for the Appeals Division of the Employment Security Administration. During that period I decided between 28 and 32 cases per week involving complicated issues of law and fact under Article 95A, Maryland Unemployment Insurance Law. The hearings in these cases were formal 'due-process' quasi-judicial proceedings governed by § 7(e) and (g) of Article 95A and the regulations in COMAR 07.04.06. As the presiding officer it was my function to swear in all parties, to summarize the case and to proceed with conducting the hearing to afford all parties the opportunities to be heard on all relevant issues. At many hearings both claimants and employers were represented by counsel or by private organizations, for the employer. I was required to rule on all evidentiary matters which were applicable to the proceedings. Cross-examination of witnesses as well as parties was also permitted. After the hearing was concluded, I evaluated the evidence and made findings of fact and conclusions of law in a written decision. This decision would be mailed to all interested parties who could then appeal to the Board of Appeals of the Employment Security Administration."

The Board gave three reasons for denying Mark W.'s petition. Because we believe that the Board was correct in its third reason, that the applicant has not been engaged in the practice of law, we focus only on it. The Board said:

"[T]he Applicant's duties do not qualify as the 'practice of law'. The Court of Special Appeals in Lukas vs. Bar Association of Montgomery County, Maryland, Inc., 35 Md.App. 442, 371 A.2d 669 [ (1977) ], while not formulating a precise definition of the practice of law, elicited three general areas constituting, in the Court's opinion, the practice of law. They are instructing and advising clients in regard to the law; preparing documents requiring more than a layman's knowledge of legal principles; and representing clients before public tribunals. We do not feel that the Applicant's activities clearly fall within either of the said areas."

We do not adopt this definition of "practice of law." However, we believe the activities here do not come within the meaning of the term. In In Re Lohmeyer, 218 Md. 575, 580, 147 A.2d 703, 706 (1959), we quoted from in In Re Rotolo, 247 App.Div. 724, 285 N.Y.S. 274 (1936), where the court said, "[T]here must be a strict construction of the rules of admission on motion." To similar effect see Application of Babcock, 387 P.2d 694, 696 (Alaska 1963).

Numerous definitions of what constitutes practice of law are to be found. Some definitions such as that mentioned by the Board as given by the Court of Special Appeals in Lukas v. Bar Ass'n of Montgomery County, 35 Md.App. 442, 444-45, 371 A.2d 669, 671, cert. denied, 280 Md. 733 (1977), are much more complicated than others. See, e.g., Babcock, 387 P.2d at 697; Undem v. State Bd. of Law Examiners, 266 Ark. 683, 692, 696, 587 S.W.2d 563, 568-70 (1979); State Bar of Arizona v. Arizona Land Title & Trust Co., 90 Ariz. 76, 87, 366 P.2d 1, 8-9 (1961); J.H. Marshall & Associates, Inc. v. Burleson, 313 A.2d 587, 594 (D.C.1973); Gazan v. Heery, 183 Ga. 30, 36-39, 187 S.E. 371, 375-76 (1936); Miller v. Vance, 463 N.E.2d 250, 251 (Ind.1984), quoting Matter of Perrello, 270 Ind. 390, 398, 386 N.E.2d 174, 179 (1979); Grand Rapids Bar Ass'n v. Denkema, 290 Mich. 56, 62-4, 287 N.W. 377, 379-80 (1939); In Re Thompson, 574 S.W.2d 365, 366 (Mo. en banc 1978); Appell v. Reiner, 81 N.J.Super. 229, 236, 195 A.2d 310, 314 (1963); State, ex rel. v. Shattuck, 1 Ohio St.3d 272, 274, ...