Opinion
No. 5342
1-2-1987
In the Matter of the ADOPTION OF PROPOSED RULE 988 and AMENDMENT of RULE 952(c), CALIFORNIA RULES of COURT. * Bar Misc.
In the Matter of the ADOPTION OF PROPOSED RULE 988 and AMENDMENT of RULE 952(c), CALIFORNIA RULES of COURT. *
Supreme Court of California,
In Bank.
BIRD, Chief Justice, dissenting.
With the best of intentions, this court is adopting Proposed California Rule of Court, rule 988 (hereafter rule 988), which permits an attorney admitted to practice law in a foreign country to register with the State Bar as a Registered Foreign Legal Consultant (hereafter RFLC) and to engage in the practice of law in this state. By fostering the practice of law by foreign lawyers in California and facilitating the implementation of a reciprocal arrangement in other countries, rule 988 may reflect legitimate and even laudable social policies. However, the rule exempts a set of attorneys from the statutory requirements demanded of all other persons who seek to practice law in this state. Its adoption by this court violates settled statutory and constitutional principles.
First, rule 988 permits individuals who are not members of the State Bar to "render legal services" in California. It thus flatly violates the legislative mandate in section 6125 of the Business and Professions Code 1 which provides: "No person shall practice law in this State unless he is an active member of the State Bar."
The rendering of legal services contemplated by rule 988 unquestionably constitutes the practice of law. As the State Bar acknowledges, rule 988 authorizes an RFLC, inter alia, to provide advice and counsel regarding the law of the country in which he or she is admitted to the practice of law. 2 It is well established that the practice of law " 'includes legal advice and counsel,' " as well as " 'the preparation of legal instruments and contracts by which legal rights are secured although such matter may or may not be depending in a court.' " (People v. Merchants Protective Corp. (1922) 189 Cal. 531, 535, 209 P. 363, emphasis added; accord State Bar of California v. Superior Court (1929) 207 Cal. 323, 335, 278 P. 432; see Comment, Attorney and Client: What Constitutes the Practice of Law, 29 Cal.L.Rev. 603, 605 ["There is no doubt that the furnishing of legal advice and counsel is a large part of the practice of law."].)
More specifically, less than 13 years ago this court held that the practice of "law" referred to in section 6125 encompasses "[g]iving legal advice regarding the law of a foreign country...." (Bluestein v. State Bar (1974) 13 Cal.3d 162, 174, 118 Cal.Rptr. 175, 529 P.2d 599.) Advising California residents with respect to foreign laws is, of course, what rule 988 is all about.
In its eagerness to adopt rule 988, this court discards Bluestein and apparently embraces the State Bar's argument that by including requirements as to good standing and disciplinary procedures, rule 988 satisfies the concerns Bluestein discussed. I am not as confident that either Bluestein or section 6125 may be so easily dispatched. 3
Rule 988 is replete with language designed to ensure that the foreign lawyer will be of good moral character, in good standing in the bar of his or her own country, and subject at all times to discipline by this court. However, the proper focus is not whether the rule succeeds in this endeavor; but rather, whether a rule of this court is the proper vehicle to address these concerns. I think not. It is the Legislature, not this court, which has imposed the requirement of membership in the State Bar and attendant prerequisites. In effectuating rule 988, this court is creating an ad hoc class of practitioners and authorizing them to circumvent the legislative requirements which all other practitioners must fulfill. The court has thus overreached its sphere of power.
Although the court's inherent powers include the power to admit and to discipline attorneys, "this court has respected the exercise by the Legislature, ... of 'a reasonable degree of regulation and control over the profession and practice of law ...' in this state." (Hustedt v. Workers' Comp. Appeals Bd. (1981) 30 Cal.3d 329, 337, 178 Cal.Rptr. 801, 636 P.2d 1139.) "The right to practice law ... is the mere creature of the statute ... subject to the control of the Legislature." (Cohen v. Wright (1863) 22 Cal. 293, 319, quoted in Brydonjack v. State Bar (1929) 208 Cal. 439, 443, 281 P. 1018.) This court's inherent power to determine who will become officers of the court must nevertheless bend to whatever "reasonable and minimum restrictions as the legislature may prescribe...." (Johnson v. State Bar (1935) 4 Cal.2d 744, 758, 52 P.2d 928.)
As part of its regulatory function, the Legislature has enacted the State Bar Act (§ 6000 et seq.), the constitutionality of which this court has upheld against a separation of powers challenge. (In re Shattuck (1929) 208 Cal. 6, 9-12, 279 P. 998; Brydonjack v. State Bar, supra, 208 Cal. at pp. 444-446, 281 P. 1018.) As noted, section 6125 provides that persons who are not active members of the State Bar shall not practice law. Section 6126 declares the practice of law by one who is not an active member of the State Bar a misdemeanor. Additionally, the Legislature has established stringent requirements which must be met before one can be admitted to practice (see generally § 6060) including passing a final bar examination. (§ 6060, subd. (f).)
Nor has the Legislature overlooked the prospect that individuals from outside California, including attorneys from out of this country, might seek to practice law here. Section 6062 expressly designates the minimum requirements which foreign attorneys--i.e., those attorneys whom rule 988 purports to regulate--must fulfill in order to practice in California. That section includes the requirement that attorneys from outside California shall "pass[ ] such examination as in the discretion of the examining committee may be required; provided, however, that those persons admitted to practice law in a foreign state or country where the common law of England does not constitute the basis of jurisprudence shall be required to pass the final bar examination given by the examining committee to general applicants ..." (§ 6062, subd. (d), emphasis added; see also § 6060.5.)
Unlike rule 988, the Legislature has not exempted certain classes of attorneys from a bar examination. No legislative provision exists excusing foreign practitioners from the requirement of membership in the State Bar. The Legislature has set out the prerequisites for the practice of law by foreign attorneys. It is to the Legislature the proponents of rule 988 should address themselves if they desire to alter those requirements.
This court's adoption of rule 988 usurps the Legislature's regulatory function by exempting a foreign practitioner from the foregoing statutory provisions. In so doing, the court is overreaching the Legislature in violation of the doctrine of separation of powers (see Hustedt v. Workers' Comp. Appeals Bd., supra, 30 Cal.3d at p. 338, 178 Cal.Rptr. 801, 636 P.2d 1139 and cases cited therein), and impermissibly interfering with the legislative process. (See Santa Clara v. Superior Court (1949) 33 Cal.2d 552, 558, 203 P.2d 1.) The net result is a rule of court which at best conflicts with statutory law and at worst supplants it.
Certainly, this court possesses the authority to reject legislation concerning minimum standards for engaging in the practice of law. But this power has traditionally been exercised when the Legislature fails to provide sufficient minimum standards to satisfy the judiciary. (See, e.g., In re Lavine (1935) 2 Cal.2d 324, 328, 41 P.2d 161; Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 147 Cal.Rptr. 631, 581 P.2d 636.) "In other words, the courts in the exercise of their inherent power may demand more than the Legislature has required. [Citations.]" (In re Lavine, supra, 2 Cal.2d at p. 328, 41 P.2d 161, emphasis added.) Until now, it has not been suggested that this court may, through summary order, require less qualifications and rigors of admission for a chosen set of prospective practitioners than the Legislature has deemed appropriate.
By affording foreign attorneys the opportunity to practice law in California without meeting the qualifications demanded of attorneys from other states in the United States, rule 988 may raise equal protection problems as well. The relaxed requisites of rule 988 apply only to a person admitted to practice and in good standing "as an attorney or counselor at law or the equivalent in a foreign country." Presumably, then, attorneys from the other 49 states, even though in good standing and otherwise similarly situated, could not qualify as RFLC's since they are not "foreign." They would therefore be disallowed from rendering legal services (rule 988(o)) in California absent compliance with sections 6060 or 6062 and 6125. 4 In a twisted sense, rule 988 thus accords special privileges based on alienage, an inherently suspect classification. (See Takahashi v. Fish Comm'n. (1948) 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478; Purdy & Fitzpatrick v. State of California (1969) 71 Cal.2d 566, 579, 79 Cal.Rptr. 77, 456 P.2d 645.)
Rule 988 violates the express terms of section 6125, sanctions a misdemeanor violation of section 6126, and usurps the Legislature's role regarding minimum requirements for admission to the bar. It also arguably discriminates in its operation against United States practitioners by requiring more of them than their foreign counterparts in order to practice law in California. In my view, its adoption far exceeds the inherent powers of this court and is a blatant encroachment on the Legislature's power to regulate admission to the practice of law.
For these reasons, I cannot sign today's order adopting rule 988. Although the policy behind the new rule may be laudatory, we cannot run roughshod over the law. Respect for the Legislature's role, and the importance of affording similar treatment to all out-of-state practitioners, compel me to withhold my signature from the order. --------------- * NOTE: For text of Amendments to the California Rules of Court, Rules 952(c) and 988, see 236 Cal.Rptr. yellow page 43, advance sheet issue of June 5, 1987. 1 All statutory references are to the Business and Professions Code. 2 The only restrictions rule 988 attaches to the RFLC practitioner are as follows: An RFLC may not render legal advice on the law of any jurisdiction other than the jurisdiction(s) in which he or she is admitted to practice law. (Subd. (o)(5).) An RFLC may not "appear for a person other than himself or herself as attorney in any court, or before any magistrate or other judicial officer in this State; or prepare pleadings or any other papers or issue subpoenas in any action or proceeding brought in any such court or before any such judicial officer." (Subd. (o)(1).) An RFLC may not prepare documents or instruments involving realty located in this country (subd. (o)(2)); the disposition of property after death located in this country and owned by a United States resident (subd. (o)(3)(i)); the administration of a decedent's estate in this country (subd. (o)(3)(ii)); or the marital relations, rights or duties of a United States resident, or custody or care of the children of such a resident (subd. (o)(4)). Finally, an RFLC may not hold himself or herself out as a member of the State Bar of California (subd. (o)(6)), or use any title other than "Legal Consultant" (subd. (o)(7)). 3 This court is free, under proper circumstances, to depart from decisional precedent. (9 Witkin, Cal. Procedure (3d ed.), Appeal, § 759, p. 727.) "The rule of stare decisis is not so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each instance by the discretion of the court. Previous decisions should not be followed to the extent that error may be perpetuated and that wrong may result." (County of Los Angeles v. Faus (1957) 48 Cal.2d 672, 679, 312 P.2d 680.) However, it is manifest that a break from the rule of stare decisis must be undertaken only with great caution and circumspection. I fear that the order adopting rule 988 and overruling Bluestein v. State Bar, supra, suffers from a decided absence of careful consideration. 4 Out-of-state attorneys may appear pro hac vice in specific cases provided local counsel is associated as attorney of record (Cal. Rules of Court, rule 983.) However, permission to make such a limited appearance lies solely within the discretion of the court in question. (See Walter E. Heller Western, Inc. v. Superior Court (1980) 111 Cal.App.3d 706, 711, 168 Cal.Rptr. 785; Leis v. Flynt (1979) 439 U.S. 438, 441-442, 99 S.Ct. 698, 700-701, 58 L.Ed.2d 717 [no statutory or constitutional right to appear pro hac vice.].) Moreover, by its very nature, an appearance pro hac vice is usually granted for the purpose of handling a specific case; the attorney must not be engaged in substantial business activities in California, and may not make repeated appearances. (Cal.Rules of Court, rule 983(a).)