In Re Unification of the Montana Bar Ass'n

Application was made to this court by the petition of certain of the members of the bar of the state, acting upon the advice *Page 561 of and representing the State Bar Association, to adopt and promulgate rules for the "Unification and Integration of the Montana Bar." The court entertained the petition and caused notice thereof to be given to all admitted and practicing attorneys in the state, with the suggestion that opinions and arguments as to the legality and merits of the proposition be filed within a given time. Numerous attorneys availed themselves of the opportunity thus given to address themselves to the petition. Some of the responses were in the form of able and illuminating briefs.

Thereafter the matter was set for hearing on a day certain; whereupon the president of the State Bar Association and several other lawyers appeared and argued in support of the petition, and others appeared and argued in opposition thereto. The matter was then taken under advisement by the court. The subject covered by the arguments, both written and oral, took a wide range. Generally, however, they were directed to (1) the authority and powers of the court in such matters, and (2) the advisability and wisdom of adopting and promulgating the proposed rules.

The study of the general subject precipitated by the petition has been interesting and enlightening. The theories and principles which actuated the petition have not been and are not now local to this state. They have been given some consideration by lawyers all over the country for the past few years, and have been discussed and debated by bar associations and legal groups in most of the states. A considerable number of states have adopted some phase of the proposed plan. Some of the states have done so in the manner proposed in the petition. In many of the instances where this course was pursued, contests occurred as to the constitutionality of the rules adopted. Notably among the very able opinions on these matters are those of the supreme court of Missouri (In re Richards, 333 Mo. 907,63 S.W.2d 672; Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977), and Nebraska (In re Integration of the State Bar, 133 Neb. 283,285, 275 N.W. 265, 114 A.L.R. 151). Other judicial opinions on related subjects are most enlightening and instructive. In addition to the opinions cited and others available, much has been *Page 562 written on the subject by individual lawyers and jurists generally. Without assuming to review the subject or the history thereof comprehensively, or to apply the reasoning of any of the opinions too specifically to the matter now before us, we, nevertheless, have arrived at two conclusions; viz.:

This court, under and within the terms of our Constitution and[1] the statutes of this state, has the power and authority to adopt, promulgate and enforce all necessary, proper and appropriate rules for its own government and for the admission and regulation of attorneys at law in the state of Montana. This the court has done from its inception. No substantial controversy has existed in the past, and none now exists, between this department and the other major departments of state. It will be time enough to consider any such contingency if and when it arises. The other coordinate departments have been generally free from attempts to impinge upon the rights, powers or prerogatives of this department, and the judicial department has consistently and uniformly avoided attempts to encroach upon the fields properly occupied by the other departments under the terms of a very clear and explicit Constitution.

The second proposition involves the necessity for and the[2] wisdom of adopting and putting into effect the proposed rules and regulations. This involves, to some extent, consideration of the success or failure of the rules already in effect. If the present rules are satisfactory and efficient, if under them a fair measure of beneficial results has been achieved and enjoyed, the need for change cannot be said to be imperative. If, on the other hand, our system and rules have become outmoded and are no longer suited to our needs, or adequate for our purposes, the necessity for the new or proposed rules should be obvious to anyone familiar with the facts.

The rules now in effect are the result of trial and error. They were not all adopted at one time, or put into effect upon conjecture. They were involved from experience as judged, appraised and applied by a long line of able, efficient and brilliant lawyers and jurists. We hesitate to sweep them all aside and consign them to the wastebasket in order to replace them with *Page 563 other and different rules, modern and progressive though they may seem.

The present members of this court have a larger measure of pride in the record and standing of the court as accomplished and written into our judicial history by the many able men who have served upon it, than they can possibly have in their own ability and wisdom. That being so, we hesitate to say that we can in a new set of rules to be formulated and promulgated at this time sufficiently improve the situation in Montana to justify the experiment. Admittedly, the proposed plan carries with it many features that are comparatively new and have not yet been tried sufficiently entirely to demonstrate their worth and their advantage over the existing rules.

More important still, we do not feel that as yet there has been a sufficient showing to demonstrate the necessity for the immediate abandonment of our existing rules in favor of some other system. The lawyers of the state have not spoken in impressive enough numbers to convince us that the time is at hand when such measures are justified. We know of no abuses of serious character existing under the present system that would certainly be remedied or even substantially improved under the new rules. Perhaps that is the reason that there has not been a more general demand for the changes by the members of the bar at large.

We are not antagonistic or opposed to changes when such are manifestly wise and necessary. In the evolution of events, or upon a more impressive showing, a similar petition might bring a different response. At this time we do not deem that the exigencies of our situation dictate a favorable response to the petition, and it is accordingly denied.