Titus, Application of

• Decision Date: 09 October 1972
• Citation: 213 Va. 289,191 S.E.2d 798
• Parties: Application of Roger W. TITUS for Admission to Practice Pursuant to Rule 1A:1.
• Court: Virginia Supreme Court

Page 798

191 S.E.2d 798

213 Va. 289

Application of Roger W. TITUS for Admission to Practice Pursuant to Rule 1A:1.

Supreme Court of Virginia.

Oct. 9, 1972.

Roger W. Titus, Rockville, Md., pro se.

Stuart H. Dunn, Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen., Vann H. Lefcoe, Asst. Atty. Gen., on brief), for the Commonwealth.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

CARRICO, Justice.

This matter involves the question of the validity of certain of the provisions of Rule 1:5 (now Rule 1A:1 ¹), Rules of Court, applicable to the admission of foreign attorneys to practice law in this state without examination. Under the rule, as prerequisite to such admission, this court must determine that an applicant has 'become a permanent resident of the Commonwealth.' Rule 1A:1(4)(c), formerly 1:5(4)(c).

On November 22, 1971, Roger W. Titus, a member of the bar of the state of Maryland, filed with this court an application for admission to practice without examination pursuant to Rule 1:5. In his application, Titus stated that he was a permanent resident of the state of Maryland. In a covering letter, he indicated that he did not intend to become a resident of Virginia.

On December 2, 1971, we refused the application of Titus, and on January 21, 1972, he instituted an action in the United States District Court for the Eastern District of Virginia against this court, its members, and its clerk. In that action, Titus attacked the constitutionality of our rule applicable to the admission of foreign attorneys without examination.

A three-judge court was convened, and on May 17, 1972, the court granted a motion, filed on our behalf, for abstention upon our representation that Titus would be permitted to file with this court a petition for reconsideration of his application for admission. Titus filed the petition with us, the Virginia State Bar was granted leave to file a brief Amicus curiae, and the matter was argued orally. The argument centered around the same points of alleged unconstitutionality of our rule as were presented in the action filed in the District Court.

Titus contends that our rule is unconstitutional because it denies him due process and equal protection of law, violates his rights to liberty and to travel, and unlawfully burdens interstate commerce. He argues, citing Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957), that the only matters into which we may properly inquire are his fitness and capacity to practice law, and he asserts that the rule requiring him to become a resident of Virginia has no rational connection with those matters. ²

The argument presented by Titus is interesting, but it tends to obscure the one simple issue we think is presented in this case, and that is: May a state constitutionally require that an applicant for admission to its bar without examination be a resident of that state as prerequisite to such admission?

This is a question upon which, so far as our research discloses, the Supreme Court of the United States has no expressly ruled. It is true that in Schware v. Board of Bar Examiners, Supra, the court did say that while a state may require high standards of qualification for admission to the bar, any qualification must have a rational connection with the applicant's fitness or capacity to practice law. 353 U.S. at 239, 77 S.Ct. 752. But the court was not there dealing with a residency requirement. It had before it the question of the denial by the Board of Bar Examiners of New Mexico of Schware's application to take the bar examination, the denial having been based upon the prior use of aliases by Schware, his former membership in the Communist Party, and a record of previous arrests. The court held that refusal of Schware's application upon these grounds was a denial of due process and equal protection. However, there is nothing in the court's opinion which suggests that a residency requirement is precluded by constitutional principles.

Titus also relies upon Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969), where the Supreme Court declared invalid the one-year welfare residency requirements of several jurisdictions. But the court invalidated only the 'waiting period' aspect of residency as prerequisite to welfare benefits. It did not eliminate the basic requirement of residence, meaning 'living in an established place of abode' and defined, 'as is conventional, in terms of intent to remain in the jurisdiction,' 394 U.S. at 636, n. 16, 89 S.Ct. at 1332, a definition which expressly excludes Titus in this case. And the court specifically refrained from passing upon the question of 'the validity of . . . residence requirements determining eligibility . . . to obtain a license to practice a profession'. 394 U.S. at 638, n. 21, 89 S.Ct. at 1333.

The Supreme Court has, however, taken action which we think has direct and important bearing upon the question before us. In Martin v. Walton, 368 U.S. 25, 82 S.Ct. 1, 7 L.Ed.2d 5 (1961), the court dismissed for want of a substantial federal question an appeal it had awarded from a decision of the Supreme Court of Kansas. The Kansas court's decision, reported under the name of Martin v. Davis, 187 Kan. 473, 357 P.2d 782 (1960), involved equal protection and due process attacks upon a Kansas rule and statute. The rule and statute provided in substance that 'an attorney admitted to the Bar of Kansas who has been admitted to the Bar of another state and who is regularly engaged in the practice of law in that state shall associate local counsel before he can appear in the courts or before boards or commissions of Kansas.' 187 Kan. at 475, 357 P.2d at 785.

The Kansas litigation began when Martin brought a mandamus action to compel a Kansas probate judge to permit him to file cases and to appear and try them without the association of local counsel. Mandamus was denied by the state district court, the Supreme Court of Kansas affirmed, and, as has been noted, the United States Supreme Court dismissed Martin's appeal for want of a substantial federal question.

The facts were interesting. Martin graduated from the University of Kansas Law School and was shortly thereafter licensed to practice law in Kansas and Missouri. He lived in Mission, Kansas, maintained an office there, and was attorney for that city. He was a member of the State Board of Tax Appeals of Kansas and of the state and local bar associations of Kansas. He had written an article on Kansas procedure which was published in the Kansas Law Review. But because he regularly engaged in the practice of law in the neighboring state of Missouri, Martin was denied the right to appear in Kansas courts without local counsel.

In dismissing Martin's appeal, the United States Supreme Court, citing Schware v. Board of Bar Examiners, Supra, stated that the Kansas rule and statute were 'not beyond the allowable range of state action under the Fourteenth Amendment.' 368 U.S. at 25--26, 82 S.Ct. at 2. The court further said that it could not 'disregard the reasons given by the Kansas Supreme Court for the Rules in question.' 368 U.S. at 26. We will advert to those reasons later.

The importance of the Martin case to the question before us is this: If a state may constitutionally deny an attorney who is resident and licensed in that state the right to appear in its courts without local counsel because he regularly practices elsewhere, where, it surely can deny, as many states do, nonresident attorneys the right to appear Pro hac vice without local counsel. And, by the same token, a state also should be able validly to deny a nonresident attorney the right to practice generally unless he agrees to become a resident upon admission. There is no difference in principle between denying a nonresident attorney the right to appear on a case-to-case basis from denying another nonresident attorney the right to practice generally.

The Martin case is important for another reason. The Kansas Supreme Court recognized that the rule and statute there in question created two classes of attorneys. The one class encompassed members of the Kansas bar regularly engaged in the practice of law in another state, who were required to associate local counsel, and the other included the members of the Kansas bar not regularly engaged in the practice of law elsewhere, who were not so required. The court held that the difference between the two classes rested upon a consideration which was real and not fanciful, having a direct and substantial relation to the objectives to be attained--to ensure the orderly administration of justice and to provide litigants with the services of knowledgeable resident attorneys.

Here, Titus contends that, with respect to admission, Virginia has created two classes of attorneys. The first, he says, consists of Virginia residents desiring to be admitted without examination who possess all the requisite qualifications and the other of nonresidents who do not desire to become residents of Virginia but who possess all the other necessary qualifications except residency. Such classification, Titus argues, is arbitrary, discriminatory, and unreasonable.

But we think that is not the classification Virginia has made. The true classification is this: In the one class are those desiring to be admitted to practice law without examination and in the other are those desiring to be admitted by examination. As to both classes, residency rules apply. Of those seeking admission without examination, residency is required on date of admission. Those desiring to be admitted by examination must be residents on the date of application to take the bar examination and must signify their intention to continue as residents to the time of taking the examination. Code § 54--60.

We see nothing arbitrary, discriminatory, or unreasonable in the classifications under discussion whether the one advanced...