Opinion
46817.
ARGUED JANUARY 6, 1972.
DECIDED JANUARY 20, 1972. REHEARING DENIED FEBRUARY 11, 1972.
Admission to bar. Fulton Superior Court. Before Judge Alverson.
Poole, Pearce Cooper, Edwin Pearce, Robert R. Smith, for appellant.
Alexander Cocalis, Mallory C. Atkinson, for appellee.
Where an applicant seeks admission to the State Bar of Georgia by comity and must show that for five years he has as a licensed attorney engaged on a substantially full time basis in the practice of law, and as a New York attorney performed substantially full time legal services for a New York corporation, involving New York law, the fact that such corporation had moved its office to another location in the metropolitan New York area which was, however, just over the New York line into New Jersey, will not alone deprive the applicant of an 8-month credit for practice needed to round out the five-year period.
ARGUED JANUARY 6, 1972 — DECIDED JANUARY 20, 1972 — REHEARING DENIED FEBRUARY 11, 1972 — CERT. APPLIED FOR.
The appellant Clarkson was admitted to the bar of the State of New York in June 1958 and has been a member in good standing since that time. He practiced law in New York City for a period of four years and four months. In June, 1968, and through August, 1970, he served as general counsel and secretary of Oakite Products, Inc., a corporation domiciled in New York since 1909 and licensed to do business as a foreign corporation in New Jersey. Oakite physically moved its home office to Berkley Heights, New Jersey, in 1967 and it was at that location, within the metropolitan area of the City of New York, that appellant had his physical office. His work involved only legal matters having to do with general or New York law, all New Jersey legal business being handled by another person having a license to practice in New Jersey. He became a resident of Georgia in August, 1970, and applied for a license to practice law by comity. His affidavit, the thrust of which is unquestioned, states that during his 26 months at Oakite the overwhelming majority of his practice was carried on within the context of New York law. Legal documents prepared by the applicant to prove this point are submitted as exhibits, based on the law of his employer's domicile, and include studies of officer and director indemnification, negotiation of underwriting agreement and share qualification of holdings under blue sky laws, establishment of trust, drafting of charter amendments, pension plan, lease, stock exchange activities, etc. The affidavit further states: "Although seated in offices physically across the state line, the operations of Oakite and the work of applicant as general counsel relate to its domiciliary State, New York. A requirement of Oakite for its general counsel is that he be qualified and licensed to practice in the State of New York; there is no requirement that he be qualified in New Jersey ... All of the legal work performed by applicant, all legal opinions and judgments made in behalf of Oakite as its general counsel, were governed by the laws of its domicile, the State of New York. Only when applicant felt the need of specialized assistance, applicant went to attorney's offices in the City of New York and a great deal of applicant's time was spent in this fashion, that is physically within the City of New York. Applicant did not undertake in any respect to practice law in New Jersey ... Applicant retained the services of a New Jersey attorney to solve questions of New Jersey law."
As required by Code Ann. § 9-204 applicant filed his motion for admission to the Georgia Bar in the Superior Court of Fulton County. A copy was served on the State Bar of Georgia as respondent in such action. On April 2, 1971, applicant received a covering letter from general counsel for the State Bar of Georgia enclosing the Bar's objection to the grant of the license which stated in part: "This response is framed with considerable reluctance. It simply boils down to the one isolated question as to whether or not under a period between June, 1968, and August, 1970, when you served as general counsel for and assistant secretary of Oakite Products, there can be credited as much as 8 months needed to add to the period of 4 years and 4 months which unquestionably would be applicable ... It occurs to me to be obvious that there is no dispute between us as to what the facts are." This followed a letter assuring the appellant that "there is absolutely no problem insofar as character reports and educational qualifications are concerned, and we would prefer if we could simply to file a response joining in your prayer for granting the admission." The letter also stated: "We do not think living outside the borders of New York State would be necessarily controlling as we can well anticipate that many lawyers engaged on a substantially full-time basis in the practice of law in New York may reside across the state line." The letter then conceded that had applicant lived in New Jersey and commuted to an office within New York State, or if the corporation had a New York office in which applicant spent a substantial portion of his time, the committee "might be able to find sufficient justification for counting the additionally needed eight months within this period to make out the required five years."
This was the question raised by the State Bar as respondent on the hearing of the motion. The judge then denied the application, the order reiterating that the facts were not in dispute and the only issue was whether or not the applicant had complied with the statutory requirements in this regard. From the judgment denying admission Clarkson appealed.
Under Code Ann. § 9-401 the practice of law, among other things, includes preparation of legal instruments of all kind, giving of legal advice, and any action taken for others in any matter connected with the law. Under Code Ann. § 9-205 if the State Bar consents to the grant of the application the court may enter an order of admission, whereas if it objects it shall file its answer stating the grounds of objection and a hearing will be held, the burden being on the applicant to show his qualification for a license by a preponderance of the evidence. We therefore restrict our inquiry, as did the trial judge, to a question which may be summarized as follows: Assuming the applicant is otherwise qualified, that the location of his residence within the New York metropolitan area is unimportant in this case, and that he was devoting himself on a substantially full-time basis to the practice of law as defined above for Oakite Products Corp., in which capacity he acted as a New York attorney in the state where he was licensed rather than as a New Jersey attorney in a state where he was not licensed, is it true, as stated in the position of the State Bar, that the fact that the office in which he worked had been moved over the State line (a decision with which applicant had nothing to do and which did not affect the nature or qualify of his work) requires denial of a license to practice law in this state? If the appellant was not practicing law in New York, the only state where he was admitted to practice, then he was practicing illegally, and should be denied a license on that ground. Wallace v. Wallace, 225 Ga. 102, 104 ( 166 S.E.2d 718). Obviously, had the State Bar or the court so felt they would not have conceded his good character. Dealing with the question of residence only, it was held in In re Pierce, 189 Wis. 441, 450 ( 207 N.W. 966): "Mere absence from the state does not of itself necessarily forfeit or abandon the right to practice originally granted."
We are aware that we reach a different conclusion from that of New York relative to a Georgia applicant in In re Harvey, 309 N.Y. 46 ( 127 N.E.2d 801, 51 ALR2d 1196). New York does require actual residence within the state during all of the period upon which reciprocity qualifications are based, a requirement now the subject of express regulation but judicially introduced into New York law in In re Lerch, 280 N.Y. 74 ( 19 N.E.2d 788). In the Harvey case the Georgia applicant to the New York bar based his five years on Georgia domicile, but half of that time was spent outside the state traveling in various southern states as claims attorney for an insurance company. The New York court based the adverse holding entirely on residence rather than practice, and, as to the latter, said (p. 48): "As to the five years of `practice' in the foreign jurisdiction, that means admission to the Bar with the right to practice in that jurisdiction's highest court. Just how much or what kind of `practice' such an applicant must show is for the broad, inclusive discretion of the Appellate Divisions, which in the end must determine professional `fitness' as well as good character." Physical residence but not physical location of the office was there at issue. We see a broad distinction between the Harvey case, where the applicant was traveling throughout the southeastern states a good half of his time dealing with claims arising under the laws of foreign jurisdictions, and the appellant's situation here, where he continued to remain within the New York metropolitan area practicing New York law for a New York corporation. In our opinion the applicant met the requirement of five years New York practice, as required by Code Ann. § 9-202 (a) (1), which is the only question we are passing on here.
Judgment reversed and remanded to the superior court for further proceedings in accordance with this opinion. Jordan, P. J., and Clark, J., concur.