In re Pierce

189 Wis. 441 | Wis. | 1926

Lead Opinion

Escha^eiler, J.

The respondent, Glenn V. Pierce, a resident of this state, elected to apply for license to- practice as an attorney, hot under sub. (6) of sec. 2586 (now sec. 256.28), Stats., providing for the state bar examination, but rather under sub. (3) of the same section. The part material here of this sub. (3) requires: his present residing here; filing of a written application; the certificate of his admission to practice in the court of last resort of a sister state; satisfactory proof that he is of good moral character and has been engaged in actual practice in such other state for five years, within the last eight years, prior to application; and provides that the certificate of the judge of any court of record in such other state, before whom such applicant has practiced, under the seal of such court, shall be deemed sufficient proof of such practice.

Upon this statutory regulation as to admission to the bar, which this court has accepted and acted under for some time past, several questions have been here presented, stated as follows:

1. May an attorney, actually a resident here, continue while so resident to be engaged in the actual practice of law in another state?

2. Is the certificate of the judge of a court of record in such other state before whom any such applicant has practiced not only sufficient but conclusive proof of such practice?

3. And of our own suggestion, in view of this question arising under other applications before us, May such statutory condition, requiring five years of actual practice, permit a tacking of an actual practice in one state onto an actual practice in another and which all together make five years ?

4. Was Glenn V. Pierce in the actual practice of law in Minnesota during the five years? '

Intending in no manner to lessen the requirements that have heretofore been maintained or to lower the standards heretofore adopted by this court for admission to and continuance in the practice of law, we feel that a reasonable and proper construction of the statute, and of the legislative and judicial expressions of public policy on the subject, require us to answer the first three questions' above outlined as follows:

Bona fide residence in the state is an essential condition for original admission to the bar, with actual domicile and an established place of business, so that there may be no insuperable obstacle placed in the way of service of process and papers and such attorney be subject to the orders of the courts of his state. In re Mosness, 39 Wis. 509. Yet' once admitted the right continues, and is for life unless revoked. Hanson v. Grattan, 84 Kan. 843, 115 Pac. 646, 34 L. R. A. n. s. 240; 6 Corp. Jur. 580. Mere absence from the state does not of itself necessarily forfeit or abandon the right to practice originally granted. Nor has it been recognized, so far as has come to our observation, that a temporary abandonment of the legal profession as an immediate means of livelihood and a failure for a time to exercise the rights and privileges granted by the certificate of admission is a destruction of the right or privilege to a subsequently renewed practice.

As a matter of comity the courts of this state have practically always (In re Mosness, 39 Wis. 509, supra), except in criminal proceedings on behalf of the State (State v. Russell, 83 Wis. 330, 53 N. W. 441), cheerfully conceded the privilege to attorneys of sister states to engage in the conduct of trials in this state. But such has always been recognized as a. privilege extended to such outside counsel and not as a right to be claimed on their part. Barnes v. Verry, 154 Minn. 252, 191 N. W. 589; 6 Corp. Jur. 573. There can be no question but that many lawyers of prominence have carried on substantial law business in more than one state at the same time and without question or criticism. The extent to ■ which such privilege may be extended is a matter for the courts of each state to determine when a question in that regard is presented in any particular situation. The question of what shall be the required connection between residence and the practice of law is therefore primarily for the state where the practice is sought to be conducted. In re Mosness, supra; Barnes v. Verry, supra. In Maine residence does not seem to be required (In re Tryon, 114 Me. 549, 96 Atl. 235); and in New York by ch. 175 of the Laws of 1866, later repealed by ch. 417 of the Laws of 1877, but made a law as § 60, Code of Civil Procedure of 1877, and now found in 5 McKinney’s Con. Laws, p. 216, as § 470, ch. 35 of the Laws of 1909, attorneys with homes outside of the state of New York were permitted to nevertheless practice in the state .provided they there maintained an office.

We find nothing to militate against this holding in the case of Vernon County Bar Asso. v. McKibbin, 153 Wis. 350, 141 N. W. 283. There was considered the same provision we have here except that then two, and not five, years of actual practice in another state was required. There the respondent had been admitted by the Tennessee supreme court, went to West Virginia and' was there admitted by a circuit court, but not by the supreme court; and so it was held that the two years spent in practice in West Virginia could not be within our statute. That decision was expressly placed (p. 355) upon the fact that he had not practiced at all in the only state where he was admitted by and to its supreme court.

On the first question above suggested we therefore hold that the fact that Pierce, respondent here, was for a considerable portion of the five-year period an actual resident, elector, and office-holder of the state of Wisconsin does not of itself prevent or interfere with his being engaged in actual practice under said statute in a sister state, especially where, as here, it appears in the record that his name has continuously remained on the roll of attorneys in the Minnesota courts.

On the second question: This statute requires that there shall be furnished to this court satisfactory proof that an applicant has been engaged in actual practice in such other state. It further declares that the certificate of a judge from such other state shall be deemed sufficient proof of such practice. The tribunal which is to determine what is satisfactory proof of such practice -is this court and not the court or any judicial officer of any other jurisdiction. That function is one that cannot be delegated. The legislature has clearly not attempted to make such a certificate conclusive and binding upon us, and we most cértainly have no intention of so construing the statute or to so abdicate a judicial function. The .second question is therefore to be answered that such certificate is but prima facie proof and not conclusive. In re Attorney’s License, 21 N. J. L. 345.

On the third question: Although the statute, in the provisions now being considered, is in the singular, yet under general rules, and under the rules in ch. 370 for the construction of statutes, especially sub. (2), sec. 370.01 (formerly sec. 4971), providing that the singular may be construed in the plural, we have been recently holding, and now so state, that there may be, under said statute, such a tacking of actual practice, provided that there be an admission to the supreme court in each such state. The material' and substantial requirements of this statute are: the actual practice and the period of five years; therefore in which particular state such practice may be had is not so material.

On the fourth and last question we are compelled by the facts recited in the above statement to hold that it does not satisfactorily appear to us that there was an actual practice, but that the contrary conclusively appears. During the time in question the applicant, a resident of Wisconsin engaged as cashier of a bank and secretary and treasurer of a loan association and for two years as county treasurer, was devoting substantially all of his time to matters other than the practice of the law. While so engaged in Wisconsin he could not be substantially engaged in the actual practice of the law in Minnesota. An “actual practice” requires, and rtmst command, a substantial portion of the working time of a practitioner.

We have no present intention or inclination to lay down any minimum requireme'nts as to what shall be such “actual practice” of the law; and we have no intention of saying that the value or quality of the intellectual effort that may be expended m the practice of law is to be gauged or measured by the numismatic return to the practitioner.

Much that Pierce did as disclosed above, such as drawing wills; referring litigation to other attorneys, adjusting .claims, are matters and things that might have as well come to him in his daily work in the other capacities, and be done by one so engaged, as by one in the practice of law. Under any possible view that we can properly take of the situation, Pierce’s own showing as to what he did during the five-year period falls far short of what is and should be required; and his certificate having been issued upon a misunderstanding by this court of the true situation, must for that reason be revoked.

By the Court. — The certificate of this court to Glenn V. Pierce of November 12, 1924, admitting him to practice, is to be surrendered, canceled, and revoked, and his name stricken from the roll of attorneys.

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Dissenting Opinion

Crownhart, J.

{dissenting). Glenn V. Pierce, a resident of Buffalo county, attended the University of Minnesota law college, and graduated there in June, 1914. This law school is of the same grade and character as the law college of the University of Wisconsin.

Upon his admission to the bar of Minnesota soon thereafter, Mr. Pierce opened a law office in Minneapolis and began the practice of his profession. He continued there until the summer of 1917, when he responded to the call of his country for men to join the colors for the great World War. He sought enlistment in the aviation branch and was advised to go to Chicago and enlist there as from the home of his parents in Buffalo county. Like many, of the youth of the land, he first consummated his engagement to, and married, a Minneapolis young lady; then to the service and over seas, leaving his bride with her parents in Minneapolis. He served his country until April 15, 1919, when he was honorably discharged and returned to his bride, only to find her sick and himself largely in debt and with no practice. Unsettled and ill at ease, he cast about for something to do. He went to Montana and back to Minneapolis, and finally found a job with a bank in his native town in Buffalo county, which he took as a makeshift until he could get something ahead and again settle down to practice. In the meantime he continued to do some law practice in finishing some work that he had on hand before he went to the war, and had the use of a law office in Minneapolis as- needed. He became a resident of Wisconsin and was elected treasurer of Buffalo county. Then in October, 1924, he made application to be admitted to the Wisconsin bar. He presented the statutory credentials and was duly admitted: Later he became a candidate for county judge of Buffalo county, and then his troubles began.

It was in some way, not shown by the record, brought to the attention of this court that there was some claim that Mr. Pierce was not properly qualified for admission to the bar of this state when he was admitted. This court felt moved to inquire into the matter, and in response to an invitation Mr. Pierce appeared before the Justices in chambers. The record is silent as to what there happened, but it is significant that the court took no further action. Mr. Pierce was elected county judge, and then six attorneys of the Buffalo county bar appeared by petition and asked that Mr. Pierce’s license to practice in this state be revoked. From then on the opinion of the court tells the tale pretty well, but I respectfully dissent from the conclusion.

There is no pretense that Mr. Pierce has not the educational qualifications to practice law; his general character is above reproach; he is a worthy citizen, having the confidence of his fellow citizens; he is now county judge of Buffalo county, serving as such. The action of this court may disqualify him as county judge, because a county judge must be an attorney of a court of record. Sec. 253.02, Stats.

My dissent is based on the following:

1. Mr. Pierce was regularly admitted, and there was nothing but a bare technical reason for going behind his credentials.

2. The reason, apparently, is not that justice demands that this young man, who, but for the call of his country to make the great sacrifice, would now undoubtedly be enjoying á good practice, be dismissed and disgraced, but to- trv title to the office of county judge.

3. The practice that Pierce has had meets the require-’ ments of the statute. Barr v. Cardell, 173 Iowa, 18, 31, 155 N. W. 312, 316; In re Duncan, 83 S. C. 186, 65 S. E. 210; People v. Alfani, 227 N. Y. 334, 337, 125 N. E. 671, 673; Eley v. Miller, 7 Ind. App. 529, 535, 536, 34 N. E. 836-838.

It is clear from the opinion of the court that Mr. Pierce was engaged in the practice of the law sufficiently to entitle him to practice. “Actually engaged” is defined by the Alabama court in In re Strawbridge, 39 Ala. 367, 383, where it is said:

“The words 'actually engaged/ in common parlance, mean 'really or truly engaged’ — engaged in fact, and, according to the same law of common use, are the opposite or antithesis of 'seemingly’ or ‘pretendedly’ or 'feignedly engaged.’ In the common acceptation of the words, the same man may be ‘actually engaged’ in two or more pursuits or occupations at the same time. We have numerous instances in our country where the same man is, at the same time, a merchant and a planter, a physician and a planter, a lawyer, or a judge, and a planter. In fact it is a common thing for men of good property to combine the business of planting with some other pursuit or occupation. Many men do not stop at two, but unite in themselves three or four, in all of which, according to common parlance, they are actually engaged.”

Many other cases are cited by counsel justifying the admission of Mr. Pierce to this bar. We are not required to strain at a legal technicality to do this wrong. The statute says that the certificate of the judge of any court of record before whom the applicant has practiced, under seal, shall be deemed sufficient proof of such practice. Mr. Pierce furnished this proof from an able and honorable district judge of Minnesota. Now petitioners haggle over the sufficiency of such practice in order to turn this veteran of the World War out of his office of county judge. I don’t think their petition has any merit.

How quickly we forget. When Mr. Pierce was called upon to leave his practice to fight our battles in a foreign-war, college students were granted their degrees before they had finished their courses, if they would leave their college and enlist, or even if they would leave to work on the farms to help the war; Justices of the courts were particularly urging the youth of the land to go to the front, promising them that they should suffer no- loss of station or occupation when they returned; legislatures were passing laws to free them from penalties of legal obligations during their absence. And now, those who stayed at home and profited by Mr. Pierce’s absence at the front petition this court that his sacrifice shall be used against him, and this court listens with patience and decides that the letter of the law, contrary, as it seems to me, to the reason and spirit of the law, must prevail.

I respectfully dissent.