State ex rel. Laughlin v. Washington State Bar Ass'n

• Decision Date: 07 January 1947
• Docket Number: 30058.
• Court: Washington Supreme Court
• Parties: STATE ex rel. LAUGHLIN v. WASHINGTON STATE BAR ASS'N.

176 P.2d 301

26 Wn.2d 914

STATE ex rel. LAUGHLIN v. WASHINGTON STATE BAR ASS'N.

No. 30058.

Supreme Court of Washington, En Banc

January 7, 1947

Original proceeding by the State, on the relation of Robert V Laughlin, for a writ of certiorari and an interlocutory order requiring the board of governors of the Washington State Bar Association and its officers to show cause why relator's application for admission to the bar should not be granted.

Application and writ of certiorari denied.

Ward W. Roney and John J. O'Brien, both of Seattle, for relator.

S. H Kelleran, of Seattle, for Washington State Bar Association.

CONNELLY Justice.

Relator Robert V. Laughlin, a colonel in the United States army, instituted the present proceeding by filing an application for a writ of certiorari, to be directed to the board of governors of the Washington state bar association, and for an interlocutory order, directed to the same agency, requiring it and its officers to show cause why his application for admission to the bar of the state of Washington, theretofore filed with the secretary of the bar association in October, 1943, should not be granted.

We consider the procedure adopted in this court by relator as erroneous for the reason that the legislature has not conferred upon the board of governors of the Washington state bar association or any of its officers the power to enter orders admitting persons to the practice of law in this state, and for the further reason that this court has never delegated to the Washington state bar association or any of its officers power to admit applicants to the practice of law. Should the relator's application for admission to the bar of this state be granted or rejected, it will be by order of this court, not by emergency mandate under the form of extraordinary relief directed to an inferior tribunal.

The powers of the Washington state bar association in relation to admission and disbarment are clearly defined in Rem.Rev.Stat. (Sup.), § 138-8, which, in its applicable portion, reads as follows: 'The said board of governors shall likewise have power, in its discretion, from time to time to adopt rules, subject to the approval of the supreme court, fixing the qualifications, requirements and procedure for admission to the practice of law; and, with such approval, to establish from time to time and enforce rules of professional conduct for all members of the state bar; and, with such approval, to appoint boards or committees to examine applicants for admission; * * *.' (Italics ours.)

It has been a fixed rule in this state that the paramount power of determining which lawyers may or may not appear in the courts is inherently an attribute of the judicial branch of the state government and, particularly, of the supreme court, which is the highest in order in the judicial hierarchy. We so held in Re Lambuth, 18 Wash. 478, 51 P. 1071, 1072,

in the year 1898, when we said: 'But power to strike from the rolls is inherent in the court itself. No statute or rule is necessary to authorize the punishment in proper cases. Statutes and rules may regulate the power, but they do not create it. It is necessary for the protection of the court, the proper administration of justice, the dignity and purity of the profession, and for the public good and the protection of clients. Attorneys may forfeit their professional franchise by abusing it, and the power to exact the forfeiture is lodged in the courts which have authority to admit attorneys to practice. Such power is indispensable to protect the court, the administration of justice, and themselves; * * *.'

In Re Bruen, 102 Wash. 472, 172 P. 1152, 1153, we reemphasized that rule in a masterful opinion by Judge Holcomb which has since been cited extensively by practically all of the appellate courts of the country. The following pertinent expressions by the court in that case are noted here:

'* * * It is true that the judicial power of this court was created by the Constitution, but upon coming into being under the Constitution, this court came into being with inherent powers. Among the inherent powers is the power to admit to practice, and necessarily therefrom the power to disbar from practice, attorneys at law. * * *

'Under the statutes of this state a comprehensive system has been adopted with reference to the admission, suspension, and disbarment of attorneys. The power to admit, so far as the statutes of this state are concerned, is vested in the Supreme Court. The cases are fairly uniform upon the proposition that admitting to practice, suspending, and disbarring are judicial functions. The legislative power, in the interest of uniformity of standard and to remedy and prevent mischiefs in the profession, may regulate and restrict this power, but cannot take it away. It may provide machinery for the administration of the regulation provided by the Legislature, as in carrying into effect such regulations some agency is necessary. In this instance it has provided the machinery and agency of the state board of law examiners. This board has, as urged in several of the arguments Before us, been granted powers which partake of the nature of legislative, administrative, or executive and judicial. Certainly it is judicial power that is conferred when it is given the power to hear and determine the right of a person to continue the practice of law, and it not only hears and determines the right of a person to practice law, but it initiates complaints against such persons, which is the function of an administrative officer. These functions, it has been urged, have been combined in the state board of medical examiners, in the state board of dental examiners, and in other such boards, and their powers and functions have been upheld. But those professions and occupations are not filled by persons who are solely and exclusively officers of the court and under the control and regulation of the courts. The boards regulating them are administrative boards, with some incidental quasi judicial powers which cannot be exercised by them finally but are subject to review by the courts, and a review by the courts in those cases must go Before a court of original and general jurisdiction; to wit, the superior courts. It is obvious that the board of law examiners has been created a sort of inferior court, inferior only to this court, for a review is provided for from that board to this court only.

'These functions being essentially judicial and inherent in the courts, we are of the opinion that the Legislature has attempted to create a judicial tribunal which at the same time has administrative and delegated legislative powers. Such a system is not warranted under our constitutional form of government. * * *.' (Italics ours.)

The Bruen case is admirably reviewed by Federal district judge J. Stanley Webster, sitting as a member of the circuit court of appeals for the ninth circuit, in McVicar v. State Board of Law Examiners, D.C 6 F.2d 33. Judge Webster points out that, following the rendition of the opinion in the Bruen case, supra, this court decided In re Gill, 104 Wash. 160, 176 P. 11; In re Mills, 104 Wash. 278, 176 P. 556, and In re Ward, 106 Wash. 147, 179 P. 76, and further holds that Laws of 1921, chapter 126, p. 417, removed the objectionable features of the 1917 statute relating to the powers of the state board of bar examiners in disposing of applications for admission to practice law. Pertinent to our present inquiry is the following language in the McVicar case, supra : 'From this it will be seen that the court regarded the board as merely an 'intermediary agency' for the taking of evidence and reporting thereon, and that the order finally entered reflected the independent judgment of the court, uninfluenced either in whole or in part by the action taken by the board.'

Continuously through the years and as late as August, 1945, in Re Levy, 23 Wash.2d 607, 161 P.2d 651, 653, 162 A.L.R. 805, this court has adhered to the rule that the inherent and exclusive power of admission to practice law rests with the court itself and not with the Washington state bar association or any other agency of the state of Washington. The language used by Judge Robinson, the writer of the opinion in that case, has force in our present discussion:

'We find, upon an examination of the authorities, that they are almost unanimously in accord with the following statement found in-Brydonjack v. State Bar, 208 Cal. 439, 281 P. 1018, 1020, 66 A.L.R. 1507:

"Admission to practice is almost without exception conceded everywhere to be the exercise of a judicial function, * * *. Admissions to practice have also been held to be the exercise of one of the inherent powers of the court. In re Bruen, 102 Wash. 472, 172 P. 1152; In re Chapelle, 71 Cal.App. 129, 234 P. 906."

The opinion cites with approval In re Day, 181 Ill. 73, 54 N.E. 646, 653, 50 L.R.A. 519 regarded in many of the decisions of the country as the leading case. The particular language referred to in the Day case is as follows: "* * * The fact that the legislature may prescribe the qualifications of doctors, plumbers, horseshoers, and persons following other professions or callings, not connected with the judicial system, and may say what shall be evidence of such qualifications, can have no influence on this question. A license to such persons confers no right to put the judicial power in motion or to participate in judicial proceedings. The attorney is a necessary part of the judicial system, and his vocation is not merely to find persons who are willing to have lawsuits. He is the first one to sit in judgment on every case, and whether the court shall be called upon to act depends on his decision. It is our duty to...