Parks v. Board of Bar Examiners

Parks v. Board of Bar Examiners  (2004-399); 178 Vt. 599; 878 A.2d 297

2005 VT 66

[Filed 22-Jun=2005]         


                                 ENTRY ORDER

                                 2005 VT  66

                      SUPREME COURT DOCKET NO. 2004-399

                              MARCH TERM, 2005


  D. Anthony Parks                   }   Original Jurisdiction
                                     }
      v.                             }   APPEALED FROM:
                                     }   
                                     }   Board of Bar Examiners
  Board of Bar Examiners             }



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

       ¶  1.   Petitioner appeals from a Board of Bar Examiners's decision
  that he does not qualify for admission to practice law in Vermont without
  examination.  We affirm.

       ¶  2.   The principal question on appeal is whether "at the time of
  application [petitioner was] actively engaged in the practice of law for
  five of the preceding ten years in one or more jurisdictions of the United
  States," as required for admission without examination by the  Rules of
  Admission to the Bar of the Vermont Supreme Court (Rules) § 7(a).(FN1)  The
  record discloses that petitioner graduated from law school and was admitted
  to the bar of the Commonwealth of Massachusetts in 1986.  He engaged in the
  private practice of law in Massachusetts until 1990, and thereafter was in
  private practice in Rhode Island (where he was also admitted) until 1992. 
  Petitioner's application states that from 1992 to September 1999, he worked
  full time as a licensed merchant marine officer, delivering yachts for a
  series of owners in various locales.  Petitioner then returned to the
  active practice of law, working for a small law firm in Rhode Island from
  November 1999 to September 2002.  He then left the firm to work as a solo
  practitioner in Newport, Rhode Island from September 2002 until November
  2003, when he moved to Vermont.  He applied for admission on motion to the
  Vermont Bar on June 29, 2004.

        
       ¶  3.   Thus, from November 1999, when he returned to the active
  practice of law, to November 2003, when he moved to Vermont, petitioner had
  amassed four years of active practice experience.   Although petitioner
  suggested in his application that he continued to work in his solo
  out-of-state practice after moving to Vermont, he provided no details.  The
  record does reveal, however, that during this period-from January to May
  2004-petitioner served a clerkship with the Vermont Defender General's
  Office.  

       ¶  4.   In response to petitioner's application, the Board sent
  petitioner a letter in July 2004, requesting "more detail" about his prior
  practice experience during the ten year period preceding his application,
  1994 to 2004, particularly with respect to his "current Rhode Island
  practice while . . .  living in Vermont."  Petitioner responded with a
  letter describing two cases, one from Rhode Island and one from
  Massachusetts, that he had retained from his out-of-state practice and
  continued to litigate.  In a later affidavit filed in support of this
  appeal, petitioner states that the two cases settled in August 2004.  In
  his responsive letter to the Board, petitioner also appeared to suggest
  that he had engaged in some active practice between 1992 and 1999, when he
  was working full time at sea. He stated that he had provided legal advice
  to a friend in a tort action in Rhode Island, contributed a legal advice
  column to an on-line publication for maritime workers, and "very likely"
  handled certain unspecified types of legal matters.  Petitioner provided no
  further details describing the nature or extent of any legal work during
  this period.(FN2)

       ¶  5.   By letter dated August 18, 2004, the Board informed petitioner
  that it had reviewed his application and responsive letter, and had
  determined that he failed to qualify for admission on motion.  In
  explanation, the Board stated that petitioner's experience from 1994 to
  1999 did not qualify as the practice of law, and that the Board remained
  unclear on how petitioner had maintained his out-of-state practice while
  living in Vermont.  This appeal followed.      

        
       ¶  6.   Although petitioner's several claims are not precisely
  delineated, they appear to consist of the following.  First, he contends
  the Board acted "unreasonably" in disregarding his first six years of
  practice from 1986 to 1992, or at the least should have waived adherence to
  the rule defining the relevant time frame as the ten years preceding the
  petitioner's application, i.e., the period from 1994 to 2004.  While we
  recognize petitioner's earlier experience, we also believe that 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 not only through active practice but also
  through compliance with any continuing legal education requirements and
  disciplinary rules of the other jurisdiction.  The ten-year timeframe 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. 
  See Lowrie v. Goldenhersh, 521 F. Supp. 534, 539 (N. D. Ill. 1981), aff'd, 
  716 F.2d 401 (7th Cir. 1983) (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"); In re Nenno, 472 A.2d 815, 819-20 (Del.
  1983) (noting that purpose of  Delaware 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).      

       ¶  7.   We therefore reject petitioner's claim that the Board acted
  unreasonably in applying the on-motion rule as it is written. We have, to
  be sure, exercised our authority on at least one occasion to waive a bar
  rule in extraordinary circumstances. See Sarazin v. Vt. Bd. of Bar
  Examiners, 161 Vt. 364, 367-68, 639 A.2d 71, 72-73 (1994) (waiving
  requirement of clerkship "within this state" where applicant's otherwise
  satisfactory clerkship experience was with licensed Vermont attorney in
  office just over Vermont border in New Hampshire).  We have not, however,
  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.      

       ¶  8.   Petitioner also contends that the Board erred in failing to
  credit his litigation of out-of-state cases after he moved to Vermont in
  November 2003.  He argues that he was prejudiced by the  Board's failure to
  precisely define "active practice," and notes that he spent considerable
  time (at least 25 hours per week) on these matters until they settled in
  August 2004.  As noted, petitioner's active practice during the ten years
  preceding his application for admission in late June 2004, consisted of
  four years of practice in Rhode Island (from November 1999 to November
  2003).  Including his out-of-state practice after he moved to Vermont would
  add only an additional seven months (December through June 2004). 
  Therefore, even assuming-without deciding-that the Board erred in failing
  to credit petitioner for the time in Vermont, petitioner still fails to
  satisfy the five-year requirement.  Furthermore, although the rule provides
  that the ten-year timeframe is to be measured from the "time of
  application" in June 2004, the same conclusion would follow if the time
  were extended to August 2004, the month that petitioner indicates his last
  two cases settled and the Board rendered its decision.  We conclude,
  therefore, that the Board correctly interpreted and applied the rule,
  and-as discussed earlier-we discern no extraordinary circumstances
  warranting waiver of the five-year requirement.  

       ¶  9.   Petitioner also appears to argue in his reply brief that
  Vermont's reciprocity rule is unfair to attorneys from Massachusetts, which
  does not have an express active-practice requirement for out-of-state
  attorneys.  Although this difference was noted in petitioner's opening
  brief, the issue was not raised or argued, and we therefore decline to
  address it.  Bassler v. Bassler, 156 Vt. 353, 363, 593 A.2d 82, 88 (1991)
  (issues not raised in appellant's original brief may not be raised for
  first time in a reply brief).  

        
       ¶  10.   Finally, in his reply brief, petitioner contends that the
  five-year active practice rule does not rationally promote the State's
  purpose of ensuring competence, noting that our reciprocity rule authorizes
  the admission of attorneys with only three years of active practice in
  states with similar admission requirements.  The argument was initially
  raised in petitioner's opening brief in connection with his claim that the
  rule violates the Privileges and Immunities and Equal Protection Clauses of
  the United States Constitution. He subsequently advised the Court that he
  was withdrawing those claims.  Thus, petitioner's intentions with respect
  to the argument are unclear.  In any event, 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. See Schumacher v. Nix, 965 F.2d 1262, 1266-67 (3rd Cir. 1992)
  (attorney licensing classifications subject to rational basis review);
  Hawkins v. Moss, 503 F.2d 1171, 1176-77 (4th Cir. 1974) (state's interest
  in reciprocity regulations rests on "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").  Accordingly, we
  discern no basis to invalidate the general five-year active practice
  requirement, or to waive its application to petitioner.   

       Affirmed. 

       BY THE COURT:


  _______________________________________
  Paul L. Reiber, Chief Justice

  _______________________________________
  John A. Dooley, Associate Justice

  _______________________________________
  Denise R. Johnson, Associate Justice

  _______________________________________
  Marilyn S. Skoglund, Associate Justice

  _______________________________________
  Frederic W. Allen, Chief Justice (Ret.),
  Specially Assigned


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                                  Footnotes


FN1.  The 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.

FN2.  Petitioner does not appear to argue on appeal that he was engaged in
  the active practice of law for any period of time between 1992 and 1999,
  when he worked as a marine captain.  He did not list this time period in
  his application as including any active practice experience, and referred
  to these years in his brief as a "hiatus" from practice.