Petition of Tennessee Bar Ass'n

• Decision Date: 18 December 1975
• Citation: 532 S.W.2d 224
• Parties: Petition of TENNESSEE BAR ASSOCIATION for an Order Requiring Annual License Fee of All Practicing Attorneys for Disciplinary Purposes, and (2) Petition of Certain Lawyers for Organization of the State Bar.
• Court: Tennessee Supreme Court

Page 224

532 S.W.2d 224

Petition of TENNESSEE BAR ASSOCIATION for an Order Requiring

Annual License Fee of All Practicing Attorneys for

Disciplinary Purposes, and (2) Petition of Certain Lawyers

for Organization of the State Bar.

Supreme Court of Tennessee.

Dec. 18, 1975.

FONES, Chief Justice.

The Tennessee Bar Association has filed a petition requesting this Court to impose an annual license fee on each attorney licensed to practice law in the State for the purpose of funding the office of investigative counsel. This office would consist of the necessary attorneys, and supporting personnel, required from time-to-time to investigate complaints of unethical practices of lawyers referred to it by the Executive Committee of said bar association. Failure to pay the annual fee would result in suspension of the right to practice law.

In a supplemental petition the bar association asserts that the present Rule 42 of this Court is inadequate and unsatisfactory and seeks to have the Court replace said rule. It proposes that the Court adopt the 'Rules of Disciplinary Enforcement' attached to and filed with said supplemental petition.

An intervening petition by thirteen (13) members of the bar of this Court urges that the Court enter an order organizing the State Bar of Tennessee. Subsequently the Court entered orders granting leave to all interested parties to file amicus curiae briefs and gave notice that oral argument would be heard on the issues presented by said petitions.

Numerous briefs, affidavits and letters have been filed in support of and in opposition to petitions. In many instances these filings take a middle ground in favor of some of the affirmative proposals and in opposition to others.

The Court heard oral argument on the issues presented by these petitions on January 23, 1975.

The opposition to any action upon said petitions may be summarized as follows: that the Court has no authority to organize the bar particularly in the face of T.C.A. § 29--110; that the voluntary bar deals with the disciplinary problems of the profession and all other collective concerns of the professions in a satisfactory manner and thus there is no need for compulsory membership in a state bar; that the traditional independence of the individual lawyer would be jeopardized and that a unified bar is not sufficiently popular with the lawyers of Tennessee to be successful.

I.

We will first consider the question of the authority of the Court to organize the bar or to take the intermediate step of imposing an annual license fee for the purpose heretofore stated.

In 1955 the Court's authority to unify the bar was considered in an opinion authored by Mr. Justice Tomlinson, Petition for Rule Of Court, Etc., 199 Tenn. 78, 282 S.W.2d 782 (1955). Again in 1972 this issue was before the Court and was discussed by Mr. Justice Humphreys in a separate concurring opinion to the per curiam opinion, In re Adoption of Rule of Court, Etc., 479 S.W.2d 225 (Tenn.1972).

The 1955 opinion made significant observations bearing upon this Court's authority to unify the bar, but cannot be said to have expressly answered the question. The Court gave controlling consideration to the attitude of the lawyers and to the Enactment, as distinguished from the Validity, of Chapter 54, Public Acts of 1955, codified as T.C.A. § 29--110. ¹ In short, concluding that a unified bar was not popular with either the lawyers or the Legislature at that time, unification was denied without prejudice.

Then as now, opposing lawyers asserted that this Court's jurisdiction was appellate only and having no original jurisdiction to declare said 1955 act invalid, it must prevail.

Responding thereto the Court said:

'If Courts have inherent power to prescribe qualifications required for the practice of law, it seems to follow, as held by the Supreme Court of Massachusetts, in Collins v. Godfrey, 324 Mass. 574, 87 N.E.2d 838, 841, that 'the Supreme Judicial Court, as under the Constitution the highest court in the Commonwealth, is the proper representative of the judicial department and the repository of the power.' This Court's power, then, in this respect is original, rather than appellate.'

'The inherent right of Courts to prescribe qualifications necessary for the practice of law does not mean that the Legislature is without authority in that field.' 282 S.W.2d at 784.

'. . . Thus, a legislative requirement that individuals who would practice this profession must first meet certain reasonable conditions and qualifications is only the exercise by the Legislature of the police power with which that department of our government is vested. Lamb v. Whitaker, 171 Tenn. 485, 490, 105 S.W.2d 105.

'But the exercise of such authority by the Legislature does not mean that this Court, in the exercise of its authority within the premises, may not require qualifications more extensive than those exacted by the Legislature. Read: Integration of Bar Case, 244 Wis. 8, 11 N.W.2d 604, 12 N.W.2d 699, 151 A.L.R. 586--608, and cases there cited.

'In considering, then, whether a legislative enactment with reference to the right to practice law in this State is an exercise by the Legislature of its police power, it may be necessary to keep in mind that it is one thing for a statute to say that individuals must have certain qualifications in order to practice, but an entirely different thing for the statute to say that individuals need not have certain qualifications in order to practice.' 282 S.W.2d at 784, 785.

'Requiring qualifications for the practice of law, is as we have seen, a field in which both the legislative and judicial departments of our State may enter. The extent to which the Legislature may go in such field seems to depend upon whether a particular statute enacted by it in this field is a reasonable exercise of the police power of the State. The judicial department, in the exercise of its inherent authority, may require more of the officers of its Courts.' Id. at 786.

In determining that a unified bar was unpopular with the lawyers, the Court indulged the presumption that the seventy-seven (77%) percent which they found had not expressed an opinion were either positively against it, in doubt as to its wisdom, or indifferent. The Court observed that the public welfare demands cooperation between legislative and judicial branches which had been historically maintained, except pershaps for the privilege tax levied by Act of 1867--8, Chapter 4, resulting in the Lawyers' Tax Cases, 55 Tenn. 565 (1875). The Court therefore concluded that it would be Against the public interest to adopt a rule of compulsory membership in the State Bar of Tennessee.

Turning to the 1972 opinion, the Court-legislative authority issue was not considered in the per curiam memorandum, but was dealt with by Mr. Justice Humphreys in a concurring opinion. Citing appropriate authority, the learned justice noted that this Court, by virtue of its being the Supreme Court of the State has implied or inherent power to make any rule or order reasonably necessary to carry out its expected role as the constitutionally created judicial part of the tri-partite government of this State, including the power to make rules and orders with respect to lawyers and the practice of law to the extent that this is necessary to the functioning of this Court in its constitutional role.

But, he added, that the Court's power did not include the right to ignore T.C.A. § 29--110 unless bar unification was so necessary that said section amounted to an unconstitutional interference with this Court's power.

On the issue of necessity it was the opinion of Mr. Justice Humphreys that: 1. The case for unification was weaker than the case against it; 2. Functioning without a unified bar since the inception of the Court, no showing was made that historical efficiency of the Court and its attorneys had changed for the worse; 3. Lack of necessity was proven by the fact that the Supreme Courts of a majority of states function without such an association of attorneys ²; 4. The primary intent of the plan was to regulate the relationship of lawyers with each other; 5. With only a bare majority of lawyers in favor of the plan, great dissension and disharmony and bitter dissatisfaction would result, adversely affecting the function of this Court.

However, the able and respected author of said opinion concluded with the statement that if it should ever appear that a unified bar was necessary, in the constitutional sense, to the function of this Court he would support the right of the Court to unify the bar, even in the face of such a statute.

The following from the case of Ex parte Garland, 4 Wallace 333, 71 U.S. 33, 18 L.Ed. 366 (1866), was quoted with approval by Chief Justice Nicholson in the Lawyers' Tax Cases:

'. . . 'the order of admission is the judgment of the Court that the parties possess the requisite qualifications as attorneys and counsellors, and are entitled to appear as such and conduct causes therein. From its entry the parties become officers of the court, and are responsible to it for professional misconduct.

They hold their office during good behavior, and can only be deprived of it for misconduct, ascertained and declared by the judgment of the court, after opportunity to be heard has been afforded. Their admission or exclusion is not the exercise of a mere ministerial power, it is the exercise of judicial power. . . ." 55 Tenn. at 631.

From this base the Court aptly reasoned that lawyers, as officers of the Court and indispensable to its operation, were in fact an arm of the judicial department of government; that the tax in question carrying with it the penalty of forfeiture of the right to practice law for non-payment, posed the potential to destroy an indispensable arm of the judicial department of government and was unconstitutional.

The issuance of a license to practice law by this Court carries with it the...