In re Robert (I) [1981] FMSC 2; 1 FSM Intrm. 004 (Pon. 1981) (17 August 1981)

SUPREME COURT OF THE
FEDERATED STATES OF MICRONESIA

Cite as In re Robert (I), 1 FSM Intrm. 4 (Pon. 1981)

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IN THE PETITIONS OF MAKETO ROBERT
AND HOWARD HILLS FOR ADMISSION TO
PRACTICE AS ATTORNEYS

DENIAL OF PETITION FOR
ADMISSION UNDER RULE
I.A. OF COURT'S RULES
FOR ADMISSION

These petitions raise the question whether limited or provisional Trust Territory High Court authorization to practice law is sufficient High Court "certification" to qualify the applicant for admission to practice under Rule I.A. of this Court's Rules for Admission. We conclude that such restricted authorizations do not enable applicants to comply with the requirements of Rule I.A.

Rule I.A. of the Rules for Admission to practice before the Supreme court of the Federated States of Micronesia states that:

Admission Through Trust Territory High Court Certification

A. Attorneys. Any person who, as of July 12, 1981, has been certified and is entitled to practice law as

an attorney before the Trust Territory High Court shall

be certified as an attorney entitled to practice law before the FSM Supreme Court, upon tendering to this Court on or before July 11, 1982, satisfactory proof of these facts and moral and character certifications in compliance with Paragraph II.B. of these Rules of

Admission, and an admission fee in the amount of $25.00.

There is no reason to doubt that these petitioners have fulfilled, or could satisfy, the conditions specified in Rule I.A., except for the High Court's certification. Coincidentally, both applicants are graduates of California

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Western School of Law. Mr. Robert's application establishes that he has appeared in litigation before the High Court, and has taken special supplementary training in his immediate area of specialization, criminal defense work.

The High Court authorization upon which Mr. Robert relies is an Order, dated February 25, 1981, and signed by Trust Territory High Court California Justice Harold W. Burnett. This order states that Mr. Robert is:

admitted to the practice of law in the Courts of the Federated States of Micronesia for a period of one (1) year from this date, or as may be otherwise ordered by the Supreme Court of the Federated States of Micronesia when that Court becomes established as a functioning Court.

Mr. Hill's authorization, also granted by High Court Chief Justice Burnett, is entitled "Provisional Order of Admission." This order, dated June 5, 1981, admits Mr. Hill "to practice in the courts of the Trust Territory of the Pacific Islands for a period of one year, from June 5, 1981 to June 5, 1982."

Both authorizations, then, are limited to one year. Mr. Roberts' authorization is apparently limited geographically although Mr. Hill's one year right to practice extends to all of the Trust Territory. The normal High Court authorization, of course, is unlimited as to time and covers the entire Trust Territory.

Mr. Hill originally sought certification to practice before this Court by a request filed here on July 15. That request was denied by letter dated July 30, 1981 but, in a subsequent letter received by the Court on August 11, Mr. Hill

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requested reconsideration of the earlier decision. Mr. Robert's petition was submitted on August 10, 1981.

A number of similar limited or restricted authorizations to practice issued by the High Court have recently come to the attention of this Court. Because of the importance of
the effect of these restricted High Court authorizations under this Court's Rules for Admission, we have considered this question with care, and general distribution of the
decision seems appropriate.

This Court issued its Rules for Admission only after seeking comments through a series of public meetings held in all of the states of the Federated States of Micronesia and
in Guam and Saipan. Proposed rules were distributed and written comments were solicited.

Throughout this process it was apparent that there were numerous practitioners who had been permitted to appear before the Trust Territory Courts for years. Although this
Court had decided to impose a written examination requirement for new practitioners, we concluded that it would be appropriate to except present practitioners from this new requirement.

This situation was not novel or unique to this Court. Any time a new set of regulations is established to govern a profession or trade, there arises the question of what to do about those who have already become practitioners in the trade or profession under earlier rules or perhaps no rules at all. Commonly, for the reasons discussed below, the new regulatory body decides to free experienced or licensed

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practitioners from the necessity of complying with the new requirements. In that event the new rules include a "grandfather clause," which permits licensed or existing practitioners to continue in their same capacity by shielding them from the necessity of complying with the new licensing standards.

Rules I.A. and I.B. of this Court's Rules for Admission are "grandfather clauses" for attorneys and trial counselors. The application of these rules, and the reasons why they may not be extended to practitioners who have not established a full and unabridged right to practice under the previous system of regulation, can perhaps best be understood through examination of the underlying rationale of grandfather clauses.

Special allowance through grandfather clauses for experienced practitioners is grounded on several basic reasons. First is a notion of simple fairness. It is recognized that those who have devoted years to the establishment of their right to practice and to the practice itself have a strong claim, moral if not legal, to continue in that profession or trade. Through the years, devotion to one profession requires that the practitioner decline other opportunities. This is done in the belief that the continued practice of law will reap greater rewards than those other options, but the person making such a decision understandably relies upon an assumption that he will be entitled to continue in its practice. This expectancy or reliance interest of experienced practitioners is made still greater where, As here, there has been an already existing system of regulation and the practitioners'

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under that previous system have fulfilled all of those requirements with the expectation that this would be sufficient to establish their lifetime right to practice law.

Another reason for the use of "grandfather clauses" is the belief that there is a correlation between experience and the capability of the practitioner. This belief in turn rests upon two lines of thought. First, one who has practiced law for many years will have encountered many lessons in the "school of hard knocks," and will now, it is thought, be all the wiser and more proficient for having had such experience. The second thread is a mixture of Darwinian thought and belief in the free market system. Roughly stated, the idea is that clients and potential clients will be able to distinguish skilled from inept practitioners, so that only the more capable attorneys and trial counselors will be selected by clients, thus able to make sufficient earnings to continue in the profession. Under this theory, those who seek admission on the basis of years of experience will have proven their competency by the mere fact of survival in the profession. For this reason many grandfather clauses protect only those who have been engaged in the particular profession
for some specified minimum number of years.

The logic of the assumption that an experienced practitioner may be assumed to be competent so as not to require further testing is enhanced where there has been a previously existing system for certification of practitioners. The fact that a regulatory body has selected and certified those entitled

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to practice the profession strengthens the belief that the experienced practitioners may be assumed to be competent.

A final reason for placing emphasis on the Trust Territory High Court certifications is the idea of comity, that different court systems, such as the Supreme Court of the Federated States of Micronesia and the Trust Territory High Court, generally should act toward one another with respect and deference. For this Court to look behind a particular High Court certification to determine whether the individual should have been certified would be inconsistent with comity. That inquiry would involve this Court in a review of records of the High Court and would require second guessing of the High Court's action. To avoid such an undesirable prospect, it becomes necessary to limit our consideration of dealings between applicants and the High Court to the bare facts of certification or noncertification.

Our rules are grounded upon a desire to accommodate existing practitioners while upholding the quality of the bar, but we are attempting to do this in a way that respects the judgment of the High Court and does not require us to look behind that Court's decisions. This means not only that we shall not question whether the High Court has a satisfactory basis for certifications it did grant, but also that we must not attempt to determine whether the High Court erred in failing to certify a particular applicant.

With these principles in mind, there can be no doubt about the necessary conclusions concerning these applications.

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Since these limited or restricted certifications all have occurred in recent circumstances with applicants for the first time seeking authorization to practice before the High Court, there has been no justifiable reliance by the petitioners that they already have done everything necessary to establish a lifetime right to practice law throughout Micronesia.

Similarly, there are no compelling logical arguments, applicable generally to all who have received such limited High Court authorizations, that the petitioners have so decisively established their competence as to make further testing superfluous. The factor of long experience, typically important in establishing grandfather clauses, is not present here. With few or no exceptions, the applicants that have come to this Court's attention who have received such limited certifications have relatively little experience as practitioners. Moreover, the limited certifications do not themselves bespeak grounds for confidence. They reflect neither careful inquiry by the High Court nor full acceptance of the applicant for purposes of practicing before the High Court. Indeed, the limitations suggest unwillingness to grant a full certification, although presumably out of deference to this Court's anticipated organization and establishment of its own jurisdiction.

Since the considerations pertaining generally to all limited High Court authorizations do not lead to the conclusion that all should be regarded as certifications under our Rule I.A., petitioners here could prevail only if we were to engage in

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individual inquiries and determine that in their particular cases, the limited authorizations should be regarded as sufficient High Court certifications under Rule I.A. This would necessitate that we determine the import of each specific limited authorization, each of which is somewhat different. We would have to undertake case by case investigations of specific facts. This in turn would require us to examine the reasoning of the High Court and its intent in granting each specific authorization, and to consider the information submitted by each applicant to the High Court. Such an investigation is unwarranted and would be inappropriately contrary to the principles of comity mentioned earlier.

Going back now to the language of Rule I.A., we emphasize that there are two requirements. The applicant must be "certified" and "entitled to practice law as an attorney
before the Trust Territory High Court." These are complementary, not merely repetitive, stipulations. It would not have been sufficient simply to state that the applicant must be "entitled to practice law as an attorney before the Trust Territory High Court as of July 12, 1981.11 That provision, standing alone, would admit even a nonresident attorney
allowed to appear for one case only (pro hac vice). Such a "one case only" authorization is routinely given on the basis of a motion mentioning in general terms the attorney's membership in the bar of some other jurisdiction. Since this type of motion does not seek full membership in the bar, courts typically grant the motion with little or no independent

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inquiry. Plainly, there is no reason to assume that a person allowed to practice pursuant to such a notion for one case or a few cases only, will have undergone the kind
of searching inquiry by the High Court that might justify this Court in accepting the person for practice before this Court without additional reflection, investigation or testing.

This Court chose not to restrict itself to the sole test that the individual be entitled to practice as an attorney before the High Court as of July 12, 1981. Instead, our rules contain the additional requirement that the Rule I.A. applicant must have been certified by the High Court. This added condition supplements the "entitled to practice law" standard.

For all of these reasons, we decline to regard limited or provisional certifications issued by the High Court as being certifications sufficient to entitle the applicant to authorization to practice before this Court pursuant to Rule I.A. of this Court's Rule of Admission. Under Rule I.A. if the High Court unreservedly certified an applicant for practice before the High Court without limitation or abridgment, then this Court too will admit the applicant on the same terms. Where the High Court's certification is reserved or limited or in any way falls short of that standard, Rule I.A. is inapplicable. In other words, the applicants here were entitled to practice as attorneys before the High Court

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as of July 12, 1981, but they were not "certified" as of that date.

This decision implies no opinion as to the competence of the applicants to practice law. Rather, this is merely a finding that, in seeking authorization to practice before this Court, these applicants will be unable to rely upon their previous relationship with the High Court as sufficient qualification. They will have to fulfill the conditions required of new applicants.

The petitions for admission pursuant to Rule I.A. are therefore denied. However, the time for these two applicants to qualify for the Court's written examination scheduled for September 3 in Ponape is hereby extended until and through August 31, 1981.

So ordered this 17th day of August, 1981.

/s/
EDWARD C. KING
Chief Justice
Supreme Court
Federated States of Micronesia