Previous
The power to grant admission to the practice of law is an inherent judicial power. Pushinsky v. West Virginia Board of Law Examiners, 166 S. E.444, 451 (W.Va. 1980); Sullivan v. Alaska Bar Association, 551 P.2d 531 (Alaska 1976). "Only the judicial department of government has power to license persons to practice law." Hulse v. Criger, 363 Mo. 26, 147 S.W.2d 855, 857 (en banc. 1952).
Admission to practice is governed by the highest court in each state and by the various federal courts. The courts generally establish standards for admission by court rule, and delegate to a Board of Law Examiners the power to administer the rules and promulgate regulations consistent therewith. See e.g., Missouri Supreme Court Rule 8. See also Code of Recommended Standards for Bar Examiners (Feb. 2, 1980).
The states have broad powers to establish rules for admission, subject to Fourteenth Amendment constraints.
Schware v. Board of Bar Examiners, 353 U.S. 232 (1951):
A State cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment. . . . A State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar, but any qualification must have a rational connection with the applicant's fitness or capacity to practice law. . . . Obviously an applicant could not be excluded merely because he was a Republican or a Negro or a member of a particular church. Even in applying permissible standards, officers of a State cannot exclude an applicant when there is no basis for their finding that he fails to meet these standards, or when their action is invidiously discriminatory.
In In re Alexander, 807 S.W.2d 70, cert. denied, 502 U.S. 885 (1991), the first reported case in Missouri addressing law student registration, the Court stated:
The purpose of Rule 8 is to exclude from the practice of law those persons possessing traits that are likely to result in injury to future clients, obstruction of the administration of justice, or a violation of the ethical standards established for members of the bar. [One] must possess good moral character to be admitted to the Bar and must qualify himself by the long preparation and study prescribed. He must demonstrate his qualifications by passing strict tests. To properly do his part as an officer of the court in the administration of justice, his conduct must conform to a high standard of ethics. Anything less than these standards may bring disrepute upon the legal profession, impair the standing of the courts and impede the administration of justice. Leimer v. Hulse, 352 Mo. 451, 178 S.W.2d 335, 339 (1944).
Typically, states require a showing of proficiency in the law, normally through the passage of a bar examination. See, e.g., Missouri Supreme Court Rule 8.08. In addition, they require that the applicant for admission be "of good moral character." See Missouri Rule 8.05. Missouri Supreme Court Rule 8.14 states:
The practice of law in this state is a privilege. The burden of demonstrating that the requirements of this Rule 8 have been met shall be upon the applicants.
While the United States Supreme Court has been unwilling to "enter into a discussion whether the practice of law is a "right" or "privilege", Schware v. Board of Bar Examiners, 353 U.S. at 239, n.5, it has upheld placing the burden of proving compliance with necessary requirements on the applicant. Konigsberg v. State Bar of California, 353 U.S. 252 (1961).
There have been many challenges to the denial of admission based on failure of the bar examination, but these have not fared well in the courts. Illustrative is Harper v. District of Columbia Committee on Admissions, 375 A.2d 25 (D.C. 1977):
Next, we consider the contention that there is no valid relationship between the examination and the practice of law within the District of Columbia. Such a challenge has been raised in various states and uniformly rejected by the reviewing courts. The Fifth Circuit quoted Banks v. Miller as follows: The relevant question must then be whether the passing of an examination made up of subjective essay-type questions has a rational connection with the applicant's ability to practice law in the State of Georgia. It is beyond question that it does. While plaintiff would apparently favor a more objective type of examination, much of an attorney's actual work once admitted into practice involves the analysis of complicated fact situations and the application thereto of abstract legal principles. Both in legal practice and with these essay-type questions, recognition of the legal problem presented and well-reasoned explication of the relevant considerations is of utmost importance. We have no hesitation in concluding that the Committee's essay examination has a rational relationship to the practice of law in the District of Columbia and hence is a valid prerequisite to admission to the Bar.
Challenges based on objective questions have fared no better. See In re Revision of the Montana Bar Exam, 720 P.2d 285 (1986) (rejecting challenge to use of the Multistate Bar Exam).
| Previous |
Next |