Park, Application of
| Decision Date | 30 April 1971 |
| Docket Number | No. 1318,1318 |
| Parties | Application of Daiil PARK, for Admission to the Alaska Bar Association. |
| Court | Alaska Supreme Court |
Russell J. Gallagher, William M. Erwin, and Robert C. Erwin, of Hughes, Thorsness, Lowe, Gantz & Clark, Anchorage, for petitioner.
Mary F. LaFollette, Anchorage, for the Bd. of Governors of the Alaska Bar Association.
Before BONEY, C. J., and DIMOND, RABINOWITZ and CONNOR, JJ.
The Alaska Bar Association refused to certify petitioner for admission to practice law in Alaska. He has petitioned this court for admission, over opposition by the bar association.
Petitioner passed the Alaska bar examination in March 1970. He has complied with all other requirements for admission except one-he is not a citizen of the United States, which is a prerequisite to admission to practice law in Alaska under AS 08.08.130(a) 1 and Alaska Bar Rule II. 2
In Application of Houston 3 we held that the 'inherent and final power and authority to determine the standards for admission to the practice of law' in Alaska resided in the supreme court. Further, we defined the legislature's role as follows:
In adopting the majority rule, we recognize that the legislature may enact laws governing admission to practice law but hold that it may not require this court to admit on standards other than those accepted or established by the court. (Emphasis added.)
This doctrine is neither novel 4 nor unaccepted. 5 It is merely recognition of the doctrine of the separation of powers. 6
Respondent argues that while the above is true, petitioner's claim is invalid because the citizenship standard is, in the language of Houston, 'accepted or established by the court.' Respondent points to Bar Rule II, section 1, as indicative of this court's acceptance of the requirement. Petitioner, in reply, asks this court to 'review in depth' the citizenship requirements of Rule II and of AS 08.08.130, under its inherent authority to regulate the practice of law in Alaska. We agree with petitioner that such a review is appropriate at this time.
The standard of our review in such cases-that is, where the legislature has adopted qualifications for the practice of law-was set out clearly in Application of Brewer: 7
Whether or not we accept legislative standards or rules for admission to the practice of alw depends on whether they have a rational connection with one's fitness to practice law in Alaska. We will hold that there is such a rational connection if application of the legislative standards has a reasonable tendency to determine whether an applicant has a sufficient knowledge of law in Alaska to hold himself out to the public that he is adequately prepared to assume efficiently the obligations and responsibilities commensurate with representing persons in legal matters. (Emphasis added.)
Against this standard the requirement of citizenship must be measured.
The standard in Brewer specifically refers to 'a sufficient knowledge of law in Alaska'. The first inquiry is whether United States citizenship necessarily has any relationship to one's knowledge of law in Alaska. While it might at first be assumed that in many cases an alien, in this country for only a short time, will be unfamiliar with local law, such an assumption is not appropriate in this case. Petitioner has lived in the United States since 1956, and has not only passed the Alaska bar examination, but has also worked for a number of years as a law clerk for different attorneys in Alaska and has held a position as a law clerk in the Alaska State Housing Authority.
Moreover, it is appropriate to inquire whether the assumption that an alien seeking admission to the Alaska bar is unfamiliar with the law in Alaska is valid in any event. The validity of such an assumption will be provable only by recourse to independent procedures. Thus, where the assumption is valid, it may be expected that the unfamiliarity of the applicant will be reflected in the results of his bar examination, or some other examination into the area of his competence. In those cases where the assumption is repudiated by the facts, it merely adds a burden to the applicant, with no corresponding benefit accruing to the state.
The interests to be protected are the public's interest in having competent practitioners, the bar's interest in insuring that all attorneys in the state are qualified, thereby protecting its good name and reputation, and the courts' interest in having reliable and competent officers of the court to aid the courts in the exercise of the judicial office. Each of these interests will be served by any standard which insures that the professional competence and integrity of the bar is high. None of these interests is directly served by a requirement that attorneys be citizens of the United States.
It has been argued that, although citizenship might not bear directly on fitness to practice, it relates at least indirectly to the question of fitness. It purportedly does so in a number of ways. One writer collected the general reasons given for the exclusion of aliens from legal practice:
(a) the profession requires an appreciation of the spirit of American institutions; (b) the alien cannot take the necessary oath to support the Constitution; (c) war between the United States and the alien's country might necessitate the seizure of the alien with resultant injury in his clients; (d) diversity of citizenship might remove the alien from control fo the bar; (e) difficulty of training civil law attorneys in the common law; (f) practice of law is a privilege and not a right which the alien can claim; (g) the attorney is an officer of the court and, as such, should be a citizen. 8
Some of these reasons may be rejected out of hand. For example, an alien attorney would be under the control of the bar just as much as a citizen attorney so far as his eligibility to practice is concerned. He would be liable to disciplinary proceedings as well as disbarment. The argument that there will be difficulty in training civil law attorneys in the common law is met by the requirement that an applicant be a graduate of law school approved by the American Bar Association, and by the requirement that the applicant pass a written bar examination. 9 And as to the 'right-privilege' distinctionThis has been rejected by the United States Supreme Court in Schware v. Board of Bar Examiners. 10 The remaining arguments made for the citizenship requirement require more detailed analysis.
(1) Appreciation of American Institutions.
One of the reasons assigned for excluding noncitizens from the practice of law is that the legal profession requires an 'appreciation of the spirit of American institutions'. 11 We are unable to see any reason why an alien in petitioner's position would be lacking in such an appreciation. He has been in the United States for 14 years where he received his undergraduate and legal education. Certainly in that time and with that background it could be assumed petitioner would appreciate the spirit of American institutions as much as one born or naturalized a citizen of the United States.
Furthermore, the requirement is a vague one at best. To the extent that it relates to the applicant's understanding of what American institutions are all about, it is amenable to testing by examination. In this way the interests of the public, the courts and the bar will be protected. But to the extent such a requirement relates to an applicant's political views, it is likely that it would offend elemental concepts of due process 12 in that it would amount to a general determination that anyone not a citizen must necessarily hold political views which would disqualify him from being a member of the legal profession. 13
There is no doubt that the automatic determination that every alien must hold unacceptable political views is unwarranted. Thus, the requirement of 'appreciation for American institutions', is valid only insofar as it relates to one's understanding of the American system, and more particularly the role of law in that system, and this may be determined much better by tests than by looking at the applicant's nationality.
(2) Oath to Support Constitution.
Another reason given for exclusion of aliens from legal practice is that the alien cannot take the necessary oath to support the Constitution of the United States. 14 Of course, the alien can, as a matter of fact, take the necessary oath. But it is argued that he cannot do so honestly because of a possible conflict with his own rational loyalty.
An alien just visiting or casually in this country for a very temporary period of time may not have the intention to renounce his loyalty to the country of his origin and adopt the solemn obligation of supporting our form of constitutional government. But it is most likely that this is not true of an alien who is lawfully in this country and has the established intent of becoming a citizen of the United States as soon as he is able to qualify under federal law. Such a person is under the same duty to pay taxes, 15 to serve in the Armed Forces, 16 to live within our system of law-including the supreme law of the land-as is a citizen. Indeed, an alien serving in the Armed Forces of the United States must take an oath to 'support and defend the Constitution of the United States.' 17
If an alien is lawfully in the United States, and sincerely intends to become a citizen of this country and is doing whatever is necessary under federal law to accomplish that objective, it would seem not unreasonable for the bar association to devise procedures which would permit an applicant to demonstrate the fact of his lawful residence and the requisite intention. 18 Once that has been established, we can see no reason why an applicant for the Alaska bar, who meets all other qualifications as petitioner does, may not honestly and without regard to the laws of his place...
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Griffiths, Application of
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