Johnston, J. Jerald

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University of Kentucky

Kentucky Law JournalVolume 37 | Issue 3 Article 51949Is the Power of the Courts to Control the BarExclusive?J. Jerald JohnstonUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Legal Profession CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationJohnston, J. Jerald (1949) "Is the Power of the Courts to Control the Bar Exclusive?," Kentucky Law Journal: Vol. 37 : Iss. 3 , Article 5.Available at: https://uknowledge.uky.edu/klj/vol37/iss3/5NOTESIS THE POWER OF THE COURTS TO CONTROL THEBAR EXCLUSIVE,?Recent events1 have directed the attention of lawyers aswell as the public to the inherent power of the courts to controland regulate matters pertaining to the legal profession. A sub-stantial line of decisions dealing with the question leaves littledoubt that the judiciary can and will guard its power to definethe practice of law, to decide what is unauthorized practice. todisbar members of the profession and to govern the admissionto practice. The theory on which such power rests is that thejudicial power is inherent, 2 however, the trend in the casesseems to point to its being exclusive as well. It is the purposeof this note to examine directly this idea that the inherent powerof the courts to prescribe rules and regulations for the practiceof law is an exclusively judicial power. As will be seen below theproblem can arise in a number of ways, but we are concernedprimarily with situations where the legislature, as well as thecourts, attempts to control directly the matter in question.The majority of cases brought before the courts concerningthe questions of disbarment and admissions can be handled easilyby the courts on the basis of their inherent power onl Thequestion as to a court's right to disbar, for example, often israised in a case where the legislature has prescribed by statutecertain grounds for disbarment, and other grounds are statedas the reason for the particular petition for disbarment. The'Hobson v Kentucky Trust Co., 303 Ky. 493, 197 S.W 2d 454(1946) Ky H. B. 334 (1948) which provided that graduates of theUniversity of Kentucky and the University of Louisville law schoolsand of other schools which met the standards of these two schoolsand were approved by the Court of Appeals should be admitted tothe practice of law in Kentucky without a bar examination; andthe opinion of the Kentucky Attorney General to the effect that thepreparation of income tax returns by anyone other than a licensedattorney for a fee is the illegal practice of law. KY. Op. ATT. GEN.24858, 25082, 25284 (1948)In this connection, see Note, 37 Ky. L. J. 58 (1948)(CNTRIZL OP," BAR BY COURTSsame may be true in the case of admissions where the legislaturehas specified certain qualifications, and the courts have addedother qualifications to those specified. In Commonwealth v Roe,3for instance, respondent contended that since the statute hadprescribed causes for which an attorney could be disbarred thecourt could not disbar him for any cause not stated in the stat-ute. The Kentucky Court held that courts, independent of stat-ute, had the inherent right to disbar an attorney guilty of suchpersonal or professional conduct as proves him unworthv to havehis name on the rolls. As pointed out in Louisville Bar Assocta-ton ex rel. Drane v Yonts, 4 the court bases its right to controland regulate attorneys traditionally on the fact that attorneysare "officers of the court," and are subject to the court s right.to puish them for acts of professional misconduct. In Common-wealth ex rel. Ward v Harrington,5 the Court of Appeals heldthat it has original jurisdiction over an inquiry into chargesagainst an attorney notwithstanding the constitutional provisioncoiiferring appellate jurisdiction only, since the inquirv did notinvolve judicial power and authority as contemplated in, theConstitution. In the same year the constitutionality of the BarIntegration Act,0 which authorized an originaf proceeding in theCourt of Appeals to discipline or disbar an attorney, was chal-lenged. The court held that the statute gave the court no powerwhich it did not already possess, since courts had inherent powerto deal with matters relating to attorneys, and found the Actconstitutional.7 In tis case, the court did say, in effect. that insetting up the machinery called for in the Bar Integration Act,it was acting out of comity and deference to the legislature, andwas merely exercising an inherent power.8 In fact, this wouldseem to be the nearest that the Kentucky Court has come todeclaring that its power of control over affairs of the Bar isexclusive. In other jurisdictions the situation is similar to thatin Kentucl, in that the courts in general state that while thelegislature may prescribe minimum standards for admission and"129 Ky. 650, 112 S.W 683 (1908).'270 Ky. 503, 109 S.W 2d 1186 (1937)"266 Ky. 41, 98 S.W 2d 53 (1936).-Ky. R. S. (1946) 30.170.In re Sparks, 267 Ky 93, 101 S.W 2d 194 (1936)Id. at 97, 101 S.W 2d at 196.L.J.-aKENTUCKY LAv JOURNAIgrounds for disbarment, the judiciary has the power to makeadditional requirements and grounds 0In virtually all of these cases, both in Kentuck and otherjuribdietions, the power of the courts to control matters of thebar has been upheld merely by the court's invoking its inherentpower. without any serious question arising as to the extent ofthe legislature's right to exercise a statutory control over thematter. The question whether the power of the courts over af-fairs of the bar is exclusive seems to receive appropriate atten-tion only in those cases in which the legislature attempts toregulate affirmatively affairs of the profession, and a conflictbetween judicial power and legislative power results. For ex--ample. suppose that the Court of Appeals follows the opinion ofthe Attorney General, mentioned supra,'0 and declares that thepreparation of income tax returns is the practice of law, and thatsuch preparation by accountants and others is the unauthorizedpractice of law Suppose further that the legislature shouldpass a statute defining the practice of law and specifically ex-empt the preparation of income tax returns from the definition.What decision would the court reach in a proper case testing theconstitutionality of such a statute ? Or, suppose that the legisla-ture had passed the bill requiring that graduates of certain lawschools in Kentucky be admitted to practice without an exam-ination. Either situation would put to a clear test the court'soften asserted inherent right to control admissions to the barand define the practice of law.In determining the answer to such a question, one musthave a clear definition of terms. Bouvier's Dictionary defines"inherent power" as "an authority possessed without its beingderived from another. A right, ability or faculty of doing athing. without receiving that right° ability or faculty fromanother." "Exclusive" is defined as "not including, debarringIn. re Myeland, 45 Ariz. 484, 45 P 2d 953 (1935), James v.State, 61 Ga. App. 860, 7 S.E. 2d 398 (1940), Ex parte Steckler, 179La. 410, 154 So. 41 (1934) In re Opinion of the Justices, 279 Mass.607, 180 N.E. 725 (1932) State ex rel. Ralston v. Turner 141 Neb. 556,4 N.W 2d 302 (1942) In re Olmstead, 292 Pa. 96, 140 Atl. 634 (1928),Grievance Committee of State Bar of Texas, 21st Congressional Dis-trict v Dean, - Tex. Civ. App.- 190 S.W 2d 126 (1945) In reBruen, 102 Wash. 472, 172 Pac. 1152 (1918), Integration of Bar Case,244 Wisc. 8, 11 N.W 2d 604 (1943) see In re Williams, -Mo. -App.- 113 S.W 2d 353, 356 (1938)"0Ky. Op ATT. GEN. note I supra.CONTROL OF BAR BY COURTSfrom participation. Shut out not included." That the courtshave construed their power in accordance with the dictionarymeaning of "inherent" is obvious from the cases already men-tioned. Have they at the same time ruled out the possibility ofits being "exclusive" in the sense of "debarring from participa-tion* by recognizing and enforcing statutes which set up re-quirements for admission, grounds for disbarment, and whichdescribe certain acts as the unauthorized practice of law9 Underthe definition above, the answer at first glance would seem to bein the affirmative. However, the mere fact that courts have en-forced rules made by the legislature and thus given the legisla-ture some participation in the regulation of the bar does not ofitself mean that the legislatures have tie power to make validrules. Recognizmg an enactment out of comity differs greatlyfrom enforcing a lawful statute because of the court's dutyThe Kentucky Court, while it has not had to decide thequestion of exclusiveness directly, has consistently taken a standwhich indicates that it will not be subservient to the legislaturein matters of this kind. It has repeatedly held that it holds itspower independently of statute.' Other jurisdictions which havehad to meet the problem have held generally that the final decision on matters concerning the bar is a judicial one. Californiadenied the right of the legislature to prescribe rules and regula-tions for adnission to the bar to which courts must conform.i 2The court stated there that attorneys are part of the judicialbranch, and not subject to the control of the legislature. TheLouisiana court in Ex parte Steekleri 3 held that prescribingultinmate qualifications for admission to practice is a judicialfunction, and that a statute providing that the holder of a lawdegree from Tulane University was authorized to practice lawcould not deprive the judiciarv of its right to add to legislativerequirements for admission to the bar. Wisconsin, in State vCanm ,?, 14 took the position that the legislature cannot compelthe courts to admit to the bar persons deemed by the courts un-fit to exercise the prerogatives of an attorney at law. Georgiarecognizes the right of the legislature to pass laws to asd the" Commonwealth ex rel. Ward v. Harrington, 266 Ky. 41, 98 S.W2d 53 (1936), lure Sparks, 267 Ky 93, 101 S.W 2d 194 (1936).12In re Cate, -- Cal.- 273 Pac. 617 (1928)1'-179 La. 410, 154 So. 41 (1934).' 206 Wis. 374, 240 N.W 441 (1932)KENTUCKY LAV JOURNALcourts in their regulation of attorneys, but reserves the power toadmit and disbar to the court.15In connection with the same question, the Mfassachusettscourt held that " control of both admissions to and removalfrom the bar of the courts of the Commonwealth is excltswelyin the judicial department of government, and interferencetherewith by the legislative department would conflict withconstitutional provisions prohibiting the exercise of executiveand judicial powers by the legislative department.' u' In thesame case, the court said that the requirements enacted by thelegislature were restrictions on the individual and not on thecourts.Both the Nebraska and Oklahoma courts have decided easesdealing directly with statutes providing that the graduates ofcertain law schools should have certain privileges and be deemedto have certain qualifications with regard to admission to thebar. The Nebraska statute17 declared that graduates of all resi-dent law schools operating within the state should be eligible totake the state bar examination without reservation. In decidingthat the statute was unconstitutional, the court said that itit constitutes an endeavor on the part of the Legislature togo beyond the concept of minimum requirements of an applicantto take an examination for admission to the bar, and to dictateto the supreme court that the judicial department shall beshorn of its power to place higher standards or requirements ofapplicants for admission to the bar than the legislature has pro-vided. " s The Oklahoma statute19 provided that any graduateof any "Grade A" law school should be admitted to the practiceof law in Oklahoma without examination, upon motion. Thecourt, in the case of In re Bledsoe,2 0 held that the statute con-stituted an invasion of the court's inherent power to deternnethe ultimate requirements for admission to the bar and thereforewas unconstitutional. It becomes increasingly apparent that mostcourts consider that control of the bar is, in the final analysis, a"James v. State, 61 Ga. App. 860, 7 S.E. 2d 398 (1940)." In re Opinion of the Justices, 279 Mass. 607, 180 N.E. 725(1932).TNEB. COMP. STAT. (Supp. 1941) Sec. 7-102." State ex rel. Ralston v. Turner, 141 Neb. 556, - 4 N.W 2d 302,311 (1942)."OKLA. STAT. ANN. Tit. 5, Sec. 15 (1939)1186 Okla. 264, 97 P 2d 536 (1940).CONTROL Op BAR BY COURTSjudicial power,21 although the cases already discussed show thata number of them accept reasonable regulation by the legis-latures.Logic and fundamental policy would seem to support thisposition of the courts, for in a sense the'people hold the courtsresponsible for swift and efficient administration of justice, andas an aad in that administration, attorneys should be considered-officers of the court. Then, too, inefficiency of an attorney or adefalcation or misconduct on his part reflects upon the courtsand upon the entire legal profession, and since a strong andrespected judiciary is a principle of our governmental system,the courts should have the power to protect themselves by pre-scribing standards for admission and conduct of attorneys. As anecessary corrollary to this power to protect itself and its offi-cers, the court must have the right to decide what shall consti-tute the practice of law, and who shall be authorized to practiceit. At the same time, however, the legislature, under its duty toprovide for the general welfare, has the same interest as thecourt in having well-trained, highly qualified men of good char-acter as attorneys to guard and protect the legal interests of thepeople. Logically, also, it would seem to be within the "policepower" for the legislature to enact statutes -which set upiununnimr standards for the profession.Truly this is a place where the distinctions between judicialand legislative functions are largely a matter of policy Fortun-atelv there is some precedent for making a choice as to policyIt is found in those cases dealing -with the question of proceduralTeform, which is another area of considerable conflict between.judicial and legislative power. In the leading case of Burton vitaye-,2 2 the Kentucky Court of Appeals has said, "Rules ofpractice and procedure are, fundamentally, matters -within thejudicial power and subject to the control of the courts inthe admimstration of justice. The courts accept legislative-co-operatiom in rendering the judiciary more effective. Theydeny the right of legislative domnace in matters of this2' Contra: The North Carolina court considers that its duty con-sists merely in giving effect to statutory enactments on the subjectof regulation of the bar. In re Applicants for License, 143 N.C. 1, 55S.E. 635 (1905)= 274 Ky. 263, 118 S.W 2d 547 (1938).KENTUCKY LAW JounNAL-kind. 123 In the same opinion the following paragraph is illus-trative of the attitude of the court"So long as rules of practice fixed by the Legisla-ture accord with the proper and effective administra-tion of justice, they should be, and they are, followedto the letter Where, however, a situation arises inwhich the administration of justice is impaired or gen-eral rules of practice are unworkable, the duty un-doubtedly rests on the courts to draw on the reserveof their inherent power to carry out the purposeof the Constitution.2''A number of writers have urged the supremacy of the judi-ciary in regard to this matter, the most extreme view being pre-sented by Dean Wigmore, who stated that " all legislativelydeclared rules for procedure, civil or criminal, in the courts, arevoid, except such as are expressly stated in the Constitution."25He points out that even if the sentence "Each house may deter-mine the rules of its proceedings ",26 had not been found inthe Constitution, no one believes that the judiciarv could claimthe right to control legislative rules of procedure, and therefore,the legislature should not be permitted to do that to the judici-ary However, many questions of judicial procedure have a di-rect bearing on the rights of the citizenry and for this reason arelargely political and should be decided by the legislature. Prac-tically speaking, not all governmental functions can be com-pletely divided between the departments. There are a number ofpowers which fall within the functions of both the judiciary andthe legislature. The regulation of procedural matters is illustra-tive of such a power. It has been suggested that the field of pro-cedure must remain divided between these two bodies.2 7 It willbe readily seen that public policy would dictate that the legisla-ture should control that part of the field having to do with thepolitical rights of the people while the courts themselves shouldcontrol such matters of procedure as form of pleadings, themethods of securing obedience to its orders, and other mattersId. at 267, 118 S.W 2d at 549.2- Ibid.2Wigmore, All Legislative Rules for Judiciary Procedure areVoid Constitutionally, 23-ILL. L. REv. 276 (1928)" U. S. CONST. Art. I, Sec. 5.'Warner, Role of Courts and Judicial Councils in ProceduralReform, 85 U. OF PA. L. REV. 441 (1937) and see Shanefeld, TheScope of Judicial Independence of the Legislature in Matters ofProcedure and Control of the Bar 19 ST. Louis L. REV. 163 (1934).CONTROL OF BAR BY COURTS 281having to do generally with the court's routine. Reasonable en-actments should be followed by the courts, but the legislativecode of procedure should not be permitted by the courts tohamper them in the administration of justice. The same argu-ments would seem to apply equally to the problem of legislativecontrol over the bar.In conclusion, it is submitted that the inherent power of thecourts to regulate the admission to practice and disbarment, todefine the practice of law, and to decide what is the unauthor-ized practice of law is not necessarily exclusive, since the legis-lature has the right, under the police power, to enact minimumrequirements and standards, but that the power of the courts inthis respect, like their power as to rules of procedure, issuperwr to that of the legislature where there is a conflict, sincestatutory enactments on the subject are in no way restrictionson the power of the judiciaryJ JERALD JOHNSTOX

Is the Power of the Courts to Control the Bar Exclusive?

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Is the Power of the Courts to Control the Bar Exclusive?

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