In re Conner

In re Conner (2005-495)

2006 VT 131

[FILED 27-Dec-2006]

                                 ENTRY ORDER

                                 2006 VT 131

                      SUPREME COURT DOCKET NO. 2005-495

                               MAY TERM, 2006


  In re Cheryl Conner                 }          APPEALED FROM:
                                      }
                                      }
                                      }          Board of Bar Examiners
                                      }

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Cheryl L. Conner appeals from a decision of the Vermont Board
  of Bar Examiners denying her application for admission to the bar on
  motion.  Conner contends the Board erred in declining to credit her
  law-school teaching experience toward the "active-practice" requirement,
  arguing that: (1) her experience as director of a clinical internship
  program qualifies her for admission; (2) Vermont's reciprocity rule compels
  her admission under the standards of her home state of Massachusetts; and
  (3) the Vermont Rules of Admission violate her federal constitutional
  rights.  We affirm.
        
       ¶  2.  The record reveals the following facts.  In August 2005, Conner
  filed a petition for admission without examination to the Vermont bar. 
  Under our rules of admission, an applicant may be admitted "upon motion
  without examination" provided that the applicant "has been actively engaged
  in the practice of law for five of the preceding ten years in one or more
  jurisdictions of the United States."  Vermont Rules of Admission to the Bar
  § 7(a). (FN1)  Conner's application indicated that she had been licensed to
  practice law in Massachusetts since 1982.  It indicated further that, for
  six of the immediately preceding ten years (August 1995 through July 2001),
  she had been employed as the assistant director and director of a clinical
  internship program at Suffolk University Law School in Boston,
  Massachusetts.  After leaving the program in 2001, Conner worked in a
  succession of positions in Boston, including one year with a "law and
  dispute resolution firm," ten months with an organization called New
  Prospects for Justice where she described her duties as "lawyer, consulting
  and public speaking," and ten months with a research center associated with
  Northeastern University where she "supervised researchers and conducted
  legal research."  Conner then moved to Vermont, completed her three-month
  clerkship requirement in early 2005, and since then has worked for herself
  under the name "New Prospects LLC," describing her duties as "[t]eaching,
  consulting, [and] advocacy," including handling one case before the Public
  Service Board.         

       ¶  3.  By letter dated September 8, 2005, the Board informed Conner
  that law school teaching does not qualify as the "practice of law" under §
  7(f) of the Rules. That section sets forth several specific "activities"
  included within the meaning of active practice, including "the
  representation of one or more clients in the private practice of law,"
  service as a lawyer with a government agency, service as a judge or
  judicial law clerk, and service as "in-house corporate counsel."  The
  section does not, however, include law-school teaching, and this Court has
  specifically rejected the Board's recommendation to include teaching within
  the definition of the "practice of law."  The Board, accordingly, requested
  further detailed information from Conner on her previous employment,
  particularly with respect to the exact nature of her duties as
  administrative director of the clinical program at Suffolk University Law
  School.  

       ¶  4.  Conner responded by letter, dated September 12, 2005, in
  which she elaborated on her functions as former director of the clinical
  internship program.  She described the position as "overseeing the
  participation of some 13 faculty members as mentors and 500 placements in
  or around Massachusetts."  As she explained, her duties in this position
  included "counseling" students who seek an intern position, "contact[ing]"
  firms in need of legal support, "matching" students with client agencies,
  teaching a variety of courses on legal practice, reviewing student journals
  and discussing the issues they raised, and meeting with client agencies to
  evaluate student performance.  Conner also represented that a course she
  offered on the "integration of spiritual and ethical values within law
  practice" had gained national recognition, and had resulted in her
  counseling many lawyers and law students "trying to make sense of their
  values and religious lives." 

       ¶  5.  After further review, the Board informed Conner, by letter
  dated October 11, 2005, that her duties as director of the clinical program
  at Suffolk did not qualify as the active practice of law, and that her
  petition for admission on motion had, therefore, been denied.  This appeal
  followed. 

                                     I.

       ¶  6.  Conner first asserts that the "practice-based" nature of her
  clinical teaching experience warrants a "waiver" of the law-teaching
  exclusion.  We evaluate the claim against a well-established regulatory
  backdrop.  Courts maintain a strong interest in ensuring the competency of
  legal practitioners within their jurisdictions, and to this end enjoy broad
  power to establish licensing standards for lawyers as officers of the
  court.  See Goldfarb v. Va. State Bar, 421 U.S. 773, 792 (1975) (noting
  that "[s]tates have a compelling interest in the practice of professions
  within their boundaries and . . . broad power to establish standards for
  licensing practitioners"); Hawkins v. Moss, 503 F.2d 1171, 1175 (4th Cir.
  1974) (recognizing that states have a "substantial interest" in
  establishing rules of qualification for the practice of law within their
  jurisdiction).  Pursuant to this authority, this Court promulgated rules
  which provide that those who seek admission to the Vermont bar must either
  successfully complete a bar examination or demonstrate their qualification
  through a minimal period of active practice in another jurisdiction.  See
  V.R.A.B. §§ 6(a), 7(a).

       ¶  7.  As we recently observed with respect to the active-practice
  requirement for admission on motion: 
   
    the focus on the ten-year period immediately preceding the
    application serves the important public interest of ensuring that
    the applicant remains currently competent and in good standing . .
    . . The ten-year time frame is a generous but reasonable means of
    assuring that the applicant has achieved and maintained the skills
    and fitness required for the practice of law.  

  Parks v. Bd. of Bar Exam'rs, 2005 VT 66, ¶ 6, 178 Vt. 599, 878 A.2d 297
  (mem.); see also Lowrie v. Goldenhersh, 521 F. Supp. 534, 539 (N.D. Ill.
  1981) (Illinois rule requiring active practice for five of the seven years
  preceding an application for admission without examination "provides for a
  reasonable means to discover factors bearing upon [applicant's]
  competency"), aff'd, 716 F.2d 401 (7th Cir. 1983); In re Nenno, 472 A.2d 815, 819-20 (Del. 1983) (noting that the purpose of the Delaware
  admission-on-motion rule requiring five years active practice immediately
  preceding the application is "[t]o assure that there has been no diminution
  of those [practice] skills"); Weinstein v. W. Va. Bd. of Law Exam'rs, 394 S.E.2d 757, 760-61 (W. Va. 1990) (upholding Board's denial of admission on
  motion where, despite applicant's earlier years of experience, she had not
  actively practiced for five years immediately preceding her application).

       ¶  8.  Underlying the active practice requirement is the reasonable
  assumption that lawyers who have been able to sustain themselves for the
  requisite period of years by representing clients (whether private
  individuals, government agencies, or corporate entities), or by working in
  the judicial decision-making process as a judge or law clerk, necessarily
  possess the skills required to practice law within the State of Vermont. 
  See In re R.G.S., 541 A.2d 977, 980 (Md. 1988) ("The Hallmark of the
  practicing lawyer is responsibility to clients regarding their affairs,
  whether as advisor, advocate, negotiator, as intermediary between clients,
  or as evaluator by examining a client's legal affairs." (quotations
  omitted)).  As one state court has aptly noted, " 'practice of law' is a
  term of art connoting much more than merely working with legally-related
  matters."  Attorney Grievance Comm'n v. Shaw, 732 A.2d 876, 882 (Md. 1999)
  (quotations omitted).  The essence of the practicing lawyer's function is
  the exercise of professional judgment, bringing to bear all of the lawyer's
  education, experience, and skill to resolve a specific legal problem for a
  particular client or case in controversy.  See La. State Bar Ass'n v.
  Edwins, 540 So. 2d 294, 299 (La. 1989) ("Functionally, the practice of law
  relates to the rendition of services for others that call for the
  professional judgment of a lawyer.").

       ¶  9.  Considered in this light, we are compelled to conclude that
  Conner's experience as director of the clinical internship program at
  Suffolk, where she was primarily responsible for intern placement and
  placement development, rather than client representation, did not
  constitute the practice of law.  As outlined in her letter to the Board,
  many of Conner's duties were purely administrative in nature, such as
  counseling students interested in the clinical program, recruiting firms
  and agencies for placements, and matching them with student interns.  Other
  described responsibilities related more directly to the teaching of law,
  including facilitating classes on legal ethics and discussing issues
  arising from the students' internships, evaluating students' performance
  with their supervising firms and agencies, and developing a course and
  materials to integrate ethical values and legal practice.  We appreciate
  the knowledge and skill necessary to succeed in these instructional
  activities and the administration of clinical programs.
   
       ¶  10.  Nevertheless, we perceive a fundamental difference between
  such work with students  and the provision of legal services to clients.
  While Conner's teaching was apparently conducted against a backdrop of real
  clients and legal issues handled by her students under the supervision and
  responsibility of the placement firms and agencies, she does not claim, nor
  does the record show, that she was counsel of record in these cases or
  answerable to clients or courts for their progress or resolution.  She was
  not required to analyze issues of any legal complexity in order to resolve
  an actual controversy or render a professional judgment to an actual
  client, subject to the fiduciary duties that govern such relationships and
  the rules of professional responsibility that generally apply to lawyers
  and judges.  However much we may esteem the teaching of such skills, it is
  not-in our view-the equivalent of active practice for purposes of admission
  to the bar.   

       ¶  11.  Nor is our conclusion altered by Conner's related assertion
  that she is entitled to a waiver of the rule requiring active practice in
  five of the last ten years, when her teaching is considered in combination
  with her apparently extensive practice experience as an attorney for
  several government agencies prior to the last ten years.  Indeed, we
  recently considered, but rejected, a similar claim in Parks, explaining
  that we "have not . . . previously waived a time requirement for admission
  on motion under the rules, and do not believe that this case presents such
  an extraordinary situation that the otherwise salutary rule requiring
  active practice for at least five of the preceding ten years should be
  relaxed."  2005 VT 66, ¶ 7.  Here, similarly, we perceive no
  extraordinary circumstances warranting a waiver of the rule.  

                                     II.

       ¶  12.  Conner raises a number of additional claims that we address
  in turn.  First, she claims to be entitled to admission on motion under our
  reciprocal admission rule because her home state of Massachusetts would
  admit a Vermont applicant with similar experience.  Conner relies on a
  provision which waives "any part of the five-year admission [on-motion]
  requirement" when the applicant's home state "requires fewer than five
  years admission as a condition of admission on motion," provided that the
  applicant has been actively engaged in the practice of law for at least
  three of the preceding ten years.  V.R.A.B. § 7(a).  By its plain terms,
  this provision applies only where the applicant's home state requires fewer
  than five years admission as a condition of admission on motion.  The
  Massachusetts rules requires that applicants for admission on motion must
  have been admitted in their home state for at least five years.  Mass. Sup.
  Jud. Ct. Rule 3.01, § 6.1.1.   Thus, the waiver provision of § 7(a) is not
  applicable here. 
        
       ¶  13.  Conner also contends that Vermont's admission-on-motion rule
  violates a number of constitutional rights.  She claims that the rule
  discriminates against nonresidents, in violation of the Privileges and
  Immunities Clause of Article IV, Section 2 of the United States
  Constitution. (FN2)  The Privileges and Immunities Clause prohibits a state
  from imposing more stringent requirements for bar admission on nonresidents
  than residents.  Sup. Ct. of N.H. v. Piper, 470 U.S. 274, 283-84 (1985). 
  To establish such a constitutional violation, however, it is essential to
  show actual discrimination on the basis of out-of-state residency.  Sup.
  Ct. of Va. v. Friedman, 487 U.S. 59, 64-65 (1988).  Here, there is no basis
  to conclude that the admission-on-motion rule discriminates against
  nonresidents.  The rule applies across the board to attorneys licensed in
  other jurisdictions without distinction as to whether they are residents or
  nonresidents of Vermont.  Out-of-state attorneys are deprived of no
  privilege otherwise afforded Vermont residents for admission on motion. 
  Accordingly, we discern no violation.  See Morrison v. Bd. of Law Exam'rs,
  453 F.3d 190, 194 (4th Cir. 2006) (holding that North Carolina rule
  offering admission on motion to attorneys who have practiced for four years
  in states affording reciprocal rights to North Carolina attorneys does not
  violate Privileges and Immunities Clause since it "treats [nonresident
  applicants] no differently than it treats North Carolina citizens and
  residents"); Schumacher v. Nix, 965 F.2d 1262, 1265 n.4 (3d Cir. 1992)
  (holding that Pennsylvania rule requiring graduation from accredited law
  school for admission on motion did not violate rights of California
  applicants under the Privileges and Immunities Clause "because plaintiffs
  are required to meet the same requirements for admission to the
  Pennsylvania bar under the Rule as Pennsylvania graduates of unaccredited
  law schools");  Giannini v. Real, 911 F.2d 354, 357 (9th Cir. 1990)
  (rejecting out-of-state attorney's claim that requirement to pass
  California bar violated Privileges and Immunities Clause, observing that
  "[t]he absence of any disparate treatment of nonresidents is fatal to
  Giannini's claims"); Teare v. Comm. on Admission, 566 A.2d 23, 29-30 (D.C.
  1989) (rejecting claim that requirement of graduation from accredited law
  school violated rights of nonresident aliens under Privileges and
  Immunities Clause  where requirement applied equally to residents and
  nonresidents alike).  

       ¶  14.  Conner next claims that the admission-on-motion rule violates
  the Privileges and Immunities Clause by burdening the right to interstate
  travel.  Again, her claim fails for the simple reason that the Rule draws
  no distinction between residents and nonresidents, and thus imposes no
  burdens on their right to interstate travel.  Morrison, 453 F.3d  at 193
  (rejecting claim that admission-on-motion rule violated applicant's
  constitutional right to travel since it treated residents and nonresidents
  alike); Giannini, 911 F.2d  at 357 (holding that lack of disparate treatment
  of nonresidents or recent arrivals for bar admission was "fatal" to the
  claim that bar admission requirement burdens right to travel); Hawkins, 503 F.2d  at 1178-79 ("So long, then, as the State does not subject the migrant
  attorney, seeking the right to practice in the State, to no more onerous
  requirements than those imposed on its own citizens seeking such right, it
  cannot be said that the State has violated [Article 4, Section 2].");
  Levanti v. Tippen, 585 F. Supp. 499, 507 (S.D. Cal. 1984) ("The lack of
  disparate treatment of non-residents . . . eliminates the possibility of a
  barrier to interstate trade."). (FN3)    
        
       ¶  15.  On similar grounds, Conner claims that the admission-on-motion
  rule contravenes the "dormant" Commerce Clause as a form of in-state
  economic protectionism. (FN4)  This claim is groundless.  As the United
  States Supreme Court has explained, when a state statute or regulation
  "even-handedly . . . effectuate[s] a legitimate local public interest, and
  its effects on interstate commerce are only incidental, it will be upheld
  unless the burden imposed on such commerce is clearly excessive in relation
  to the putative local benefits."  Pike v. Bruce Church, Inc., 397 U.S. 137,
  142 (1970).  As noted, the admission-on-motion rule imposes no greater
  burden on nonresident attorneys than resident attorneys, and provides no
  differential treatment favoring  in-state interests over out-of-state
  interests.  Accordingly, we find no Commerce Clause violation.  See
  Schumacher, 965 F.2d  at 1265 n.4 (rejecting claim that Pennsylvania statute
  requiring graduation from accredited law school imposed burden on
  out-of-state attorney's right to compete across state borders); Giannini,
  911 F.2d  at 358-59 (holding that it was not "an unreasonable interference
  with commerce for attorneys of other states to be required to take the
  California bar to be able to practice in California"); Shapiro v. Cooke,
  552 F. Supp. 581, 589 (N.D.N.Y. 1982), aff'd 702 F.2d 46 (2d Cir. 1983)
  (holding that the "Commerce Clause is not offended by a rule which permits
  some, but not all, out-of-state attorneys to be admitted on waiver of the
  examination").                   

       ¶  16.  In an apparent effort to overcome the rule's facial
  neutrality, Conner also appears to argue that its practical effect is to
  burden or discriminate against out-of-state attorneys by imposing certain
  additional travel requirements.  While it is true, as Conner notes, that
  some out-of-state attorneys may be required to travel farther than Vermont
  residents to complete the three-month clerkship requirement for admission
  on motion, or to attend CLE classes, she offers no evidence that the
  distance is substantial for many applicants; indeed, those out-of-state
  attorneys seeking admission  from such nearby states as New Hampshire, New
  York, or Massachusetts may find their travel to be less burdensome than
  those residing in certain rural areas of Vermont.  See Tolchin v. Sup. Ct.
  of N.J., 111 F.3d 1099, 1113 (3d Cir. 1997) (holding that New Jersey's
  mandatory attendance requirement for CLE credit neither discriminated
  against nonresident attorneys on its face nor effectively burdened
  interstate commerce where the travel requirement was not shown to be more
  than a mere inconvenience, and was potentially less burdensome for some
  nonresidents than residents).  Moreover, far from burdening interstate
  commerce or stifling competition, the admission-on-motion rule tends to
  facilitate such commerce by easing the admission of out-of-state
  practitioners to the Vermont bar and thereby encouraging cross-state
  practice.  See Shapiro, 552 F. Supp.  at 588 (noting that New York's
  admission-on-motion rule "encourages and enhances" interstate commerce by
  waiving the bar examination for qualified out-of-state attorneys). 
   
       ¶  17.  Finally, Conner contends that, by offering admission on
  motion to some attorneys with a minimum of three years active-practice
  experience, while requiring five years for others, the rule violates the
  Equal Protection Clause of the Fourteenth Amendment.  As noted, § 7(a)
  permits attorneys with a minimum of three years active practice to be
  admitted on motion if the state in which they have practiced offers the
  same privilege to Vermont attorneys.  The rule also specifically offers
  admission on motion to attorneys who have practiced for three years in New
  Hampshire, based on that state's rule affording the same privilege to
  Vermont attorneys.  Even if Conner remained a Massachusetts resident,
  Massachusetts offers admission reciprocally to Vermonters,  not upon three
  years, but only after five years of active practice.  Contrary to Conner's
  claim, such reciprocity rules are subject to rational-basis review under
  the Fourteenth Amendment, and as such "have been upheld time and again." 
  Morrison, 453 F.3d  at 193; see Scariano v. Justices of the Ind. Sup. Ct.,
  38 F.3d 920, 924 (7th Cir. 1994) (holding that "[t]he right to practice law
  without taking a bar examination is not a fundamental right for equal
  protection purposes"); Schumacher, 965 F.2d  at 1266-67 (noting that
  attorney licensing classifications are subject to "rational basis" review). 
  As the court in Hawkins observed, "[r]eciprocity statutes or regulations,
  it has been uniformly held, are designed to meet a legitimate state goal
  and are related to a legitimate state interest.  For this reason, they have
  been found invulnerable to constitutional attack on equal protection
  grounds."  503 F.2d  at 1178.  The state's interest, as explained in
  Hawkins, is the "undertaking to secure for its citizens an advantage by
  offering that advantage to citizens of any other state on condition that
  the other state make a similar grant."  Id. at 1176-77. 

       ¶  18.  Consistent with these decisions, we recently held in Parks
  that "the three-year reciprocity rule serves the rational and legitimate
  state purpose of securing advantages for Vermont attorneys by offering a
  similar opportunity to citizens of other states."  2005 VT 66, ¶ 10. 
  Conner has adduced no evidence or arguments that undermine this holding or
  require us to revisit our decision.  Accordingly, we find no equal
  protection violation. 

       Affirmed.      

                                       BY THE COURT:


                                       _______________________________________
                                       Paul L. Reiber, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Brian L. Burgess, Associate Justice



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                                  Footnotes


FN1.  This section provides, in pertinent part, as follows:

    Each applicant who has been admitted to the practice of law in
    another jurisdiction of the United States may be admitted upon
    motion and without examination in this state provided that at the
    time of application the applicant has been actively engaged in the
    practice of law for five of the preceding ten years in one or more
    jurisdictions of the United States, is currently licensed to
    practice in at least one such jurisdiction, and is not under
    suspension or revocation in any jurisdiction.  

  V.R.A.B. § 7(a).

FN2.  The Clause provides:  "The Citizens of each State shall be entitled to
  all Privileges and Immunities of Citizens in the several States."  U.S.
  Const. art. IV, § 2.

FN3.  Conner also appears to claim that the law-teaching exclusion from
  active practice violates Article IV, Section 2, in some fashion because
  licensed Vermont attorneys may go "inactive" while engaged in teaching and
  may earn Continuing Legal Education (CLE) credits for certain teaching
  activities.  We fail to see how this argument undermines the State's
  interest in ensuring that candidates for admission to the bar without
  examination have engaged in the requisite period of active practice. 
  Moreover, the same privilege to assume inactive status or to obtain CLE
  credits applies to residents and nonresidents alike, and therefore provides
  no basis for finding an unconstitutional preference under the Privileges
  and Immunities Clause. 

FN4.  The United States Constitution provides that "Congress shall have Power
  . . . [t]o regulate Commerce . . .  among the several States . . . ."  U.S.
  Const. art. I, § 8.  Although the Commerce Clause applies expressly only to
  Congress's power to regulate commerce, it has been interpreted to contain
  "an implied limitation on the power of the States to interfere with or
  impose burdens on interstate commerce."  W. & S. Life Ins. Co. v. State Bd.
  of Equalization, 451 U.S. 648, 652 (1981).  This implied limitation,
  generally known as the "negative" or "dormant" Commerce Clause, prohibits
  "economic protectionism," i.e., regulatory measures designed to benefit
  in-state economic interests by burdening out-of-state competitors.  New
  Energy Co. of Ind. v. Limbach, 486 U.S. 269, 273 (1988).