Tang, Application of

• Decision Date: 06 July 1972
• Citation: 333 N.Y.S.2d 964,39 A.D.2d 357
• Parties: Application of Clifton C. TANG For Admission to the Bar.
• Court: New York Supreme Court — Appellate Division

Page 964

333 N.Y.S.2d 964

39 A.D.2d 357

Application of Clifton C. TANG For Admission to the Bar.

Supreme Court, Appellate Division, First Department.

July 6, 1972.

Clifton C. Tang, pro se.

Committee on Character and Fitness of Applicants for Admission to the Bar, First Judicial Department.

Before STEVENS, P.J., and McGIVERN, STEUER, TILZER and CAPOZZOLI, JJ.

STEUER, Justice:

The motion, brought by an applicant for admission to the Bar, asks that this Court authorize the Committee on Character and Fitness to certify him as qualified for admission. Strictly speaking the relief asked for is unnecessary, the Committee being already authorized to make such a certification whenever in its judgment such action is warranted. What petitioner really wants is a direction to the Committee to the effect that the facts as to his residence do not disqualify him. While it is not the practice of this Court to give directions to the Committee as to how it shall resolve any question before it, the issue itself, involving solely a question of statutory interpretation, is one that will eventually have to be determined by the courts. We therefore address ourselves to it.

Petitioner has passed the bar examination and has been certified by the Board of Law Examiners. His age does not appear on this application but he has been married at least since 1954. In that year, together with his wife, he bought a house in Tenafly, New Jersey, and he, his wife and their two sons have been living there ever since. He concedes that this is his permanent residence. Sometime in June 1971 he rented a room in the Hotel Dixie, 250 West 43rd Street, Manhattan. This was done admittedly to comply with the statutory prescriptions referred to infra. He spends two to four nights a week there, the rest of the time with his family in New Jersey. He intends to continue this practice until he is admitted, when presumably he will resume full time residence in New Jersey.

The statutory residence requirements are found in CPLR Rule 9406 and they are that the applicant be 'an actual resident of the state of New York for six months immediately preceding the submission of his application for admission to practice and that such residence has continued until the final disposition of the application.' The phrase 'actual resident' does not occur in any other statute of this state although there are many laws in respect to residence. It is therefore reasonable to assume that the legislature had something particular in mind. It is clear that domicile without actual presence in the state (that is, a sojourn elsewhere, the applicant once having resided here intending to return) is not sufficient (Application of Scharf, 279 App.Div. 919, 110 N.Y.S.2d 920); and it has been said that 'a mere naked legal residence' is not embraced in the term (Application of Horwitz, 276 App.Div. 918, 94 N.Y.S.2d 490). The question here is not exactly the same--whether a temporary sojourn with no intent of establishing a permanent residence and merely for the purpose of complying with a possible literal interpretation of the statute suffices.

The index to the intended meaning of the unique phraseology is, we believe, best determined by a consideration of what the statute is designed to accomplish. The general purpose of the regulations for admission to the bar of the state is to limit the practice of law to those whom the policy of the state deems eligible to engage in that practice. The residential requirements for practice are therefore illuminating unless it be assumed that the state contemplates admitting to practice those whom it would not allow to practice.

Before an applicant is admitted to practice he must take an oath which, Inter alia, affirms that he now resides at a specified address in the state (Judiciary Law, § 467) or is a resident of an adjoining state and has an office for practice located within this state. It therefore appears that those entitled to practice are limited to residents of this state and of adjoining states providing they maintain an office here. This has been specifically provided in section 470. Attorneys regularly admitted who subsequently move or fail to maintain an office here lose the right originally acquired (Park Lane Commercial Corp. v. Travelers Ind. Co., 50 Misc.2d 231, 270 N.Y.S.2d 155; Matter of Fordan, 5 Misc.2d 372, 158 N.Y.S.2d 228).

There is an apparent conflict between the residence requirements for practice as to residents of adjoining states and those for admission. On this the legislative history sheds some light. The earliest provision allowing attorneys regularly admitted here but resident in adjoining states to practice in New York was enacted in 1862, and the successor statute of 1866 (ch. 175) has continued, with slight refinements, to the present time. The present Rule, 9406 CPLR, had its origin in what was called Law Rule 1 of the General Rules enacted in 1847, prescribing the methods and conditions for admission to practice. In 1849 General Rule 1 provided that the applicant must be a resident of the judicial district in which he applied. In 1921 Rule 1 was rewritten. The residence requirements, including 'actual resident' now in CPLR 9406, are taken from that Rule. It is interesting to note that in the revision of the Rule enacted in 1910 the provision for admission of attorneys who had previously been admitted in another state was amended to allow admission to residents of other, adjoining, states who had opened and maintained an office in this state. The provision is on its face incongrous as it limits the admission of residents of adjoining states to those who prior to admission have opened an office here, and the provision was not continued.

We therefore have this situation--to practice here an attorney must be resident here or a resident of an adjoining state who commutes to his office here. If he does not have such an office he cannot continue to practice here regardless of his prior status. The situation with regard to an applicant who could not possibly have an office here for the practice of law is that he must be a resident. Resident in that connection must mean someone so...