Weinstein v. West Virginia Bd. of Law Examiners
| Decision Date | 14 June 1990 |
| Docket Number | No. 19651,19651 |
| Court | West Virginia Supreme Court |
| Parties | Bernice B. WEINSTEIN v. WEST VIRGINIA BOARD OF LAW EXAMINERS, Ross Maruka, Bradley J. Pyles, G. Charles Hughes, Rebecca A. Baitty, Sarah Nell Hall, James St. Clair, and Robert D. Aitcheson. |
Syllabus by the Court
1. Rule 4.0(b) of the West Virginia Rules for Admission to the Practice of Law requires an applicant for admission to practice on motion for reciprocity to show that he or she was lawfully engaged in the active practice of law in another state for the five years next preceding the date of application.
2. Rule 4.0(b) of the West Virginia Rules for Admission to the Practice of Law may permit some interruption in the period of active practice in another state where the attorney can show substantial diligence in seeking admission to practice in this state on motion for reciprocity.
Dan Schuda, Steptoe & Johnson, Charles Town, for Bernice B. Weinstein.
Jeremy C. McCamic, McCamic & McCamic, Wheeling, for WV Bd. of Law Examiners et al.
In this original proceeding in mandamus, the relator, Bernice B. Weinstein, seeks to compel the West Virginia Board of Law Examiners (Board) to admit her to practice in this state pursuant to our reciprocity rule, Rule 4.0(b) of the West Virginia Rules for Admission to the Practice of Law. This rule allows an attorney to be admitted to practice in West Virginia without taking our written bar examination if the applicant has been "lawfully engaged in the active practice of law [in any other state] for five (5) years next preceding his or her application." 1 We conclude that the relator has failed to demonstrate a clear legal right to admission without examination, and we deny the writ prayed for.
The assertions in the relator's petition and exhibits are undisputed. The relator earned her law degree from the University of Buffalo School of Law in 1962 and was admitted to practice in the State of New York on June 25, 1963, after successfully completing the bar examination. She practiced law in New York until December, 1975. The relator subsequently worked as an attorney for the United States Department of Veterans Affairs in the District of Columbia from January, 1976, until her retirement on December 3, 1988. In October 1989, she obtained employment with a law firm in Charles Town, West Virginia.
On or about April 13, 1990, the relator applied to the Board for admission to practice on motion for reciprocity under Rule 4.0(b). By letter dated April 30, 1990, the Board advised the relator that her application had been rejected because she had not actively practiced law for the five-year period immediately preceding her application. 2 The relator subsequently instituted this proceeding.
At issue here is whether the relator's failure to actively practice law during the sixteen-month period between her retirement from the Department of Veterans Affairs in December 1988 and the submission of her application for admission to practice in April 1990, 3 disqualifies her from admission on motion under Rule 4.0(b). The Board apparently contends that this interruption in the relator's professional career renders her ineligible for admission by reciprocity because the rule requires five continuous years of active practice in another state immediately prior to the filing of the application. The relator asserts that in view of her over twenty-six years of active practice as an attorney in good standing in New York and the District of Columbia, this period of inactivity should not deprive her of the privilege of admission without examination.
We have never had occasion to address this issue. The plain language of the rule, however, requiring "an applicant [to] have been lawfully engaged in the active practice of law for five (5) years next preceding her or her application," would appear to contemplate a continuous five-year period of active practice immediately preceding the filing of the application.
This was the conclusion the Supreme Court of Delaware reached in interpreting a similar reciprocity provision. In the case of In re Huntley, 424 A.2d 8, 11, 14 A.L.R. 4th 1, 5 (Del.1980), the court stated:
"The purpose ... of the condition that the applicant has been actively engaged in the practice of law for the preceding five years is to support a presumption ... that such an applicant is competent in the law on the basis of his experience in practice as well as his success in another State's 'full' bar examination."
See Shapiro v. Cooke, 552 F.Supp. 581 (N.D.N.Y.1982), aff'd, 702 F.2d 46 (2d Cir.1983); Lowrie v. Goldenhersh, 521 F.Supp. 534 (N.D.Ill.1981), aff'd, 716 F.2d 401 (7th Cir.1983); Application of Stormont, 238 Kan. 627, 712 P.2d 1279 (1986); Application of R.G.S., 312 Md. 626, 541 A.2d 977 (1988); Goetz v. Harrison, 154 Mont. 274, 462 P.2d 891 (1969); Petition of Jackson, 95 R.I. 393, 187 A.2d 536 (1963); Lane v. West Virginia State Bd. of Law Examiners, 170 W.Va. 583, 295 S.E.2d 670 (1982). In Petition of Nenno, 472 A.2d 815, 819-20 (Del.1983), the court added:
See Petition of Jackson, supra.
This is not to say, however, that no interruption in an applicant's active practice will be tolerated under the reciprocity rule. In Lohmeyer v. Maryland State Board of Law Examiners, 218 Md. 575, 147 A.2d 703 (1959), for example, a Maryland court rule permitted admission without examination if the applicant had been "actively and continuously engaged as a practitioner ... of the law" in another state. The Maryland Court of Appeals recognized that the term "continuously" as used in this rule "should be so construed as to be consistent with the objects and purposes of the rule." 218 Md. at 580, 147 A.2d at 706.
More to the point is the decision of the Supreme Court of Delaware in Petition of Nenno, supra. The applicant, Mr. Nenno, had been admitted to the Pennsylvania Bar in 1976 and had practiced law in Philadelphia until March, 1982. On March 22, 1982, he became employed as an attorney at a Wilmington, Delaware bank, but continued to live in Pennsylvania. Because the Delaware rules in effect at the time required applicants for the Bar to be Delaware residents, Mr. Nenno did not immediately apply for admission by limited examination. 4 The rule was subsequently amended on June 30, 1982, to eliminate the residency requirement. On August 5, 1982, Mr. Nenno contacted the Delaware Board of Bar Examiners, but was told that applications would not be available and could not be filed until January, 1983. Mr. Nenno filed his application for admission to practice in Delaware on April 22, 1983. By letter dated June 23, 1983, the Board of Bar Examiners rejected the application on the ground that Mr. Nenno had not actively practiced law in another state for the preceding five years, citing the thirteen-month gap between his Philadelphia law practice and his application.
The Delaware court set out the following guidelines for interpreting the admission rules it had promulgated:
The court concluded that Mr. Nenno had been diligent in his efforts to apply for admission to practice in Delaware and had filed his application at the earliest possible opportunity. As a consequence, the court found him qualified under its reciprocity rule.
We believe that the Delaware court's analysis is applicable to our reciprocity rule as well. Rule 4.0(b) requires an applicant for admission to practice on motion for reciprocity to show that he or she was lawfully engaged in the active practice of law in another state for the five years next preceding the date of application. Rule 4.0(b) may permit some interruption in the period of practice where the attorney can show substantial diligence in seeking admission to practice in this state on motion for reciprocity. 5
Here, the relator asserts that her early retirement from government service was unexpected and that she subsequently took some time to evaluate her options for future employment, including the possibility of returning to practice in New York. We are not informed in any detail as to what occurred between the relator's retirement on December 3, 1988, and her employment in West Virginia in October, 1989, although the relator asserts that she sold real estate, worked in a hardware store, and actively sought employment in the legal profession during this period. More importantly, no explanation is offered for her almost six-month delay in seeking admission to practice after she obtained employment in West Virginia.
Upon these facts, we cannot say that the relator has shown the sort of diligence that would warrant compelling the Board to admit her on motion. In Syllabus Point 3 of Deeds v. Lindsey, 179 W.Va. 674, 371 S.E.2d 602 (1988), we restated our standard for determining entitlement to mandamus:
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