Martin v. Walton

PETITIONER:Martin
RESPONDENT:Walton
LOCATION:Vilage of Kake

DOCKET NO.: 30
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 368 US 25 (1961)
ARGUED: Oct 17, 1961
DECIDED: Nov 06, 1961

Facts of the case

Question

Audio Transcription for Oral Argument – October 17, 1961 in Martin v. Walton

Earl Warren:

Keith Martin, Appellant, versus Herbert Walton, as Probate Judge of Johnson County, Kansas.

Mr. Payne.

Howard E. Payne:

Mr. Chief Justice, May it please the Court.

This case comes before the Court on this appeal, presenting a matter involving an attorney admitted to the Bar of the State of Kansas and the question that is presented to the Court is whether or not under the Due Process and the Equal Protection Clauses of the Fourteenth Amendment, the Constitution of the United States may an attorney who has been regularly admitted to practice in the state of his residence, in this instance, Kansas.

And who also maintains an office and in active practice in that state since the date of his admission be denied by a subsequently promulgated court rules the right to appear as counsel in the courts of Kansas and the Boards and Commissions of that state unless he associates with him, a local lawyer, a local Kansas lawyer.

The same as if he were a nonresident, non-admitted attorney for the sole reason that Mr. Martin, the appellant in this case, in addition to maintaining an office and a practice and being admitted to the Kansas Bar, also maintains an office and a practice in the sister state of Missouri.

That is essentially the question which we have here before the Court today.

Earl Warren:

He is a citizen of Kansas?

Howard E. Payne:

He is a citizen, Your Honor, a resident of Kansas, and maintains an office in Kansas.

Charles E. Whittaker:

He lives there.

Howard E. Payne:

And lives in Kansas, that is correct Your Honor.

Felix Frankfurter:

Your reference to the fact that this was a subsequently promulgated regulation or —

Howard E. Payne:

Yes.

Felix Frankfurter:

— statute, leads me to ask, approximately what is the size of the Missouri Bar?

Howard E. Payne:

The Missouri Bar as according to the judicial findings of our Supreme Court, is approximately 1800.

Felix Frankfurter:

The whole state?

Howard E. Payne:

No, in the Kansas City — Kansas City Missouri Bar.

The whole state, Your Honor, I do not know.

Felix Frankfurter:

But this is applied to the whole state, does it not?

Howard E. Payne:

Well, it applies to Mr. Martin practicing anywhere within any other state so long as he maintains an office in Kansas, our court has said that if he practices in a foreign state also, then he must associate with him when he practices in Kansas, a local lawyer —

Felix Frankfurter:

I just want to get the incidence of this statute or regulation.

For the whole state, you have given out, I guess, the size of the Bar, roughly what is it?

Howard E. Payne:

In the whole state of Missouri?

Felix Frankfurter:

Yes.

Howard E. Payne:

Your Honor, I do not know.

Felix Frankfurter:

Out of the 18 — within the immediately affected area, out of the 18, how many have a practice both in Kansas and in Missouri?

Howard E. Payne:

Well, I think that probably within the so-called classification that is affected by these rules, there are approximately 25 to 40 lawyers who reside in Kansas, who maintain an office in Kansas and who are admitted to the Bar in Kansas, but who also practiced over in Kansas City, Missouri or in the State of Missouri.

Felix Frankfurter:

I’m not hitting or suggesting that numbers make the difference, I was just curious to know how many lawyers are affected by this — by this restrictive provision?

You know, out of 15 or 20, did you say?

Howard E. Payne:

Well, it would be 25 to 40.

Felix Frankfurter:

25, 30 to 40.

Howard E. Payne:

25 to 40, who are affected by these rules so far as the area that we are concerned about is concerned.

Felix Frankfurter:

And that’s where — where the shoe pinches most, doesn’t it?

Howard E. Payne:

Well, that is correct, Your Honor.

I think that probably, if Your Honor, if the Court rather understood the geographics of this thing, primarily, this situation arose because of Johnson County Kansas having a largely residential population and having about 90 members of the Bar at Johnson County, Wyandotte County, Kansas, which adjoins Johnson County, having approximately —

(Inaudible)

Howard E. Payne:

That is correct, Your Honor, having approximately all 400 or 500 members of the Bar, and then over across to the east of the state line is Jackson County, Missouri and that is where Kansas City, Missouri is located, and there is approximately 1800 lawyers in Jackson County, Missouri or Kansas City, Missouri.

Earl Warren:

Is there any provision in the law concerning the division of fees?

How they must be divided?

Howard E. Payne:

In the rules?

Earl Warren:

Yes, in the rules.

Howard E. Payne:

Not in the rules adopted, Your Honor, by the Supreme Court.

But each of the local bar associations, the Wyandotte County Bar and the Johnson County Bar, and probably through as far as Jackson County, although we need not necessarily be concerned about that, but Johnson County and Wyandotte County have local rules with regards to fees varying from one-third to 50%.

John M. Harlan II:

Irrespective of the service(Inaudible) —

Howard E. Payne:

Well that is the rule, but actually I think most of the counsel, most of the attorneys are guided more or less by the canons adopted by the American Bar Association, in other words it is not an inflexible thing.

Hugo L. Black:

When you say rules –?

Howard E. Payne:

The American Bar Association rules, Your Honor.

John M. Harlan II:

That is their acceptable rule?

Howard E. Payne:

Yes, and I think that is predicated upon the — or time consumed in the extent of the services and value of the services that may have been rendered.

Well, this is not (Inaudible)

Howard E. Payne:

That — that is correct, that’s correct.

If it’s not the county bar, as a member of (Inaudible)

Howard E. Payne:

That is correct, Your Honor, the —

John M. Harlan II:

Although they don’t know the apparent bar association.

Howard E. Payne:

Well, not actually, of course, it depends upon the circumstances and the lawyer involved.

But if a lawyer, a local counsel so-called, insisted that he be paid a minimum fee as adopted by the standard or by the local bar committee, I suppose there would be matter of negotiation between he and the so-called foreign attorney.

But he could insist and probably, the courts would require the payment.

John M. Harlan II:

I thought the evidence in this record says that your client (Inaudible)

Howard E. Payne:

All —

John M. Harlan II:

Is that up to the good conscience of your client to say that (Inaudible)

Howard E. Payne:

Well, I know there was some testimony to that effect given by my client in the hearing in the Taylor versus Taylor case.

But actually no lawyer who is compelled to hire a local lawyer expects a local lawyer to sit there and incidentally, I would say to the Court now, that when I talk about a local lawyer being associated, I do not mean a lawyer who merely signs the pleadings in the clerk’s office, and then goes back to his office.

Under these rules, that local lawyer, if a case takes a day or 10 days, must be in constant presence of the Court in the court room, and not back at his office.

Felix Frankfurter:

Mr. Payne, I know awfully a little about being – never had any roughly speaking, I don’t understand how private arrangement within the Bar of Kansas can determine the fees enforceable in Missouri practice, I don’t understand that, except by agreement of party, sure.

Howard E. Payne:

Well, Your Honor —

Felix Frankfurter:

I don’t understand this.

Earl Warren:

Kansas practice.

Howard E. Payne:

Pardon me, sir.

The —

Felix Frankfurter:

I understand that this involves Missouri practice, doesn’t it?

Howard E. Payne:

Not, not as far as fees is concerned.

Felix Frankfurter:

That a Missouri lawyer must associate himself with a — that a Kansas — who has office in both states, can’t practice in Kansas without associating himself with a Missouri lawyer.

No.

Howard E. Payne:

No.

Your Honors, here —

Felix Frankfurter:

Well —

Howard E. Payne:

— here is —

Felix Frankfurter:

— that’s what I thought, but I was corrected.

Howard E. Payne:

Here is our —

Felix Frankfurter:

Well, let me put it this way, I do not see how the internal agreement among the bar association of one state can affect legal business done in another state.

Howard E. Payne:

Well, of course, actually the fees that are fixed by the local bar associations of the Kansas counties, do not have any reference to fees that are charged over in Missouri, if I understand Your Honor’s question correctly.

But it is only in those instances where a so-called foreign lawyer that is, let’s say a Missouri lawyer, comes over into Kansas and under the rules is compelled to hire in association in that lawsuit a Kansas lawyer.

Then under the rules of the county in which he — this litigation is pending, he must pay to the local counsel a fee.

Felix Frankfurter:

That is — that is by arrangement within the bar association.

Howard E. Payne:

The bar —

Felix Frankfurter:

Is that governing — is that — is that —

Howard E. Payne:

The bar associations of each of the two counties that we’re talking about, Wyandotte and Johnson.

Felix Frankfurter:

Yes, but does that bind your court?

Howard E. Payne:

It has —

Felix Frankfurter:

In sustaining those fees?

Howard E. Payne:

Well, it’s never been tested, Your Honor.

No one has ever attempted to say that they could or could not.

Potter Stewart:

This is, I suppose, a suggested minimum fee schedule.

Howard E. Payne:

That is correct, Your Honor.

Potter Stewart:

Which is quite an ordinary (Voice Overlap) —

Howard E. Payne:

Which is an ordinary thing, I think, among many of the local bar associations through — not only Kansas, but other states.

Felix Frankfurter:

My point is that if association of a local lawyer for nominal reasons, does that follow that your Supreme Court will also say that if a fellow says, “Yes, I’ll hire a Kansas lawyer to sit there or sign his name, but do nothing,” it is a coercive, an unfairly coercive thing for me to be influenced by or guided by the local fees which implied fees for doing business and not merely phenomenal requirement.

Howard E. Payne:

Well, I will agree with Your Honor on that statement.

But nonetheless, there are in the two counties involved and in most counties, I believe, a local schedule of minimum fees.

Felix Frankfurter:

What I’m saying is that our problem isn’t tied to the necessity of assuming that this fee scheme also follows from sustaining this promulgated rule.

Howard E. Payne:

Well, of course, Your Honor, if I understand the question correctly.

If a so-called foreign lawyer is compelled in this instance, it’s Mr. Martin, the appellant here, who as I would like to point out to the Court, ought not be characterized as a foreign lawyer.

But if he hires a local attorney and he’s required to do it under the present rules, he of course becomes obligated to remunerate that local attorney, he could not expect a local lawyer to even just sit, as Your Honor has suggested, and not be paid.

Now, how much he ought to be paid is of course regulated so far as the regulation can go by the minimum schedule of fees adopted by the local bar association.

Felix Frankfurter:

I agree with everything you said except the last sentence.

I do — do not think — I do not think until the Supreme Court of Kansas says that any service, any service falls within this minimum fee scheme of the two counties in question, any service, the most nominally subject to it until that is done, I do not think I have to read this promulgation as assimilating the fee scheme of these two counties.

Earl Warren:

Are there any sanctions for violation of the minimum fee schedule?

Howard E. Payne:

Minimum fee?

Earl Warren:

Minimum fee schedule, yes.

Howard E. Payne:

No, none that I know off, Your Honor.

Earl Warren:

Not in the bar association or otherwise.

Howard E. Payne:

No, sir.

It is a suggested minimum and of course some lawyers exact it, if that is the proper term, and others negotiate with the foreign — so-called foreign lawyer, and say, “Well, I’ve been here two days and my service is worth $150 a day,” it is not an exact thing, it is only a suggestion of minimum fee.

Felix Frankfurter:

Let me ask you —

Howard E. Payne:

But in any event, there is of course an obligation on the part of foreign lawyer to pay a local lawyer for his time.

Felix Frankfurter:

May I ask you this one more question, real quick.

Howard E. Payne:

Yes, Your Honor.

Go ahead.

Felix Frankfurter:

Suppose your client comes into Kansas to practice law as he could, at least, and under this regulation he has to retain somebody.

Suppose everybody recognizes that he is such a master of a particular litigation in question, if he doesn’t need any assistant, he has to comply with the law.

Felix Frankfurter:

But he says, “I will retain you, but not for the minimum fee.”

And no lawyer in Kansas, in either of these counties, is ready to associate himself on that basis.

And he then goes before your court and said, “I’ve done my best to comply with your rule,” but no lawyer will serve you except on the basis of an extortion of the fee, what would your Supreme Court say to that?

Howard E. Payne:

Well of course, I would not want to speculate Your Honor, about that, it has never occurred, and I hope that it never does.

But I suppose, as I suggested a while ago, that if the local lawyer said to the so-called foreign lawyer, now we have adopted a minimum fee schedule here in Johnson County or Wyandotte County or in Doniphan County or wherever it is.

And if I associate with you, my fee will be the minimum of a third or 50%, I suppose that the foreign lawyer would have no alternative, if he wanted that lawyer other than to — and of course the local lawyer would be as far as the schedule is concerned, would be within his rights in saying that.

Now, whether our Supreme Court would say that was exacting tribute rather than compensation, I would not argue.

Now, if the Court —

Hugo L. Black:

When you referred “the rules” that’s the question that I wanted to ask you a while ago, you referred to nothing except the schedule taken by the private bar association or the public, whichever one you want to call it —

Howard E. Payne:

I —

Hugo L. Black:

— of which has no legal sanctions.

Howard E. Payne:

Your Honor, I hope we’re not confused on the rules with regarding fees and the rules that are in controversy in this case.

Now the rules that we challenge in this case is not the local bar rules with regards to fees, the rules that we challenge here are rules which we’re adopted by the State Supreme Court in December of 1958.

Hugo L. Black:

They have the same effect as I understand as a statute?

Howard E. Payne:

That is correct.

Hugo L. Black:

Your fees do not?

Howard E. Payne:

And that’s — that’s right.

Hugo L. Black:

Except that I assume, at least it’s been my observation about minimum fees, that if you go to approve a fee before a court, what is a reasonable fee, and you have a standard of that kind fixed by the bar, I assume that would rarely ever be a fee fixed below the minimum.

Howard E. Payne:

That is correct, I think that’s —

Hugo L. Black:

That’s the practice.

Howard E. Payne:

That’s in practice.

Hugo L. Black:

You think that is — that is the practice?

Howard E. Payne:

In practice, Your Honor is correct about that.

I believe that can be said as true.

Hugo L. Black:

And if he is required to hire and he did not fix a fee, that would have to be cut out on the basis of — you have a quantum myriad action there, they call it action for the value of the services?

Howard E. Payne:

Value of the services rendered.

Hugo L. Black:

And in that case, lawyers testified to what is the reasonable fee?

Howard E. Payne:

That’s correct.

That frequently happens in matters of all probative states and things of that kind that the lawyers are called upon to give expert testimonies to the value of services rendered to the administrator or the executor state.

But —

Hugo L. Black:

I assume that the judge would rarely ever fix a fee as below the minimum, that’s the reason (Voice Overlap) —

Howard E. Payne:

Well, as a practical matter, Your Honor is correct.

Hugo L. Black:

But there’s no law (Voice Overlap)

Howard E. Payne:

Most of the local judges are cognizant of the fees that are fixed by the local bar association and in most instances with their approval or at least pass an approval and sanction and so they don’t ordinarily go below.

Hugo L. Black:

This is something like a minimum wage fixed by labor unions.

Howard E. Payne:

Yes sir.

But the thing which I am not so much concerned myself, at least, with the fee proposition, although that is important in this case.

Is that in 1958, December the 15th, I believe it was in 1958 or about 10 years, after the appellant in this case had been admitted to practice in Kansas and had practiced in Kansas incidentally for all of that period of time.

The Supreme Court of Kansas amended certain rules, rules designated in the brief as Rule 41 and Rule 54.

Now, in the amendment of those rules, the effect of it was that any lawyer although admitted to the Bar in the State of Kansas and although residing in the State of Kansas, and although maintaining an office in the State of Kansas, if he also engaged in practice of law in another state to which bar, he was admitted, then that lawyer that I’m talking about, and it’s the appellant in this case, must hire a local lawyer to associate with him whenever he tries a lawsuit or appears before any Commission or tribunal.

Hugo L. Black:

Has there been any definition yet by your court of what is meant by engages in the practice of law in another state?

Howard E. Payne:

None, Your Honor.

Hugo L. Black:

The scope or the amount of practice or —

Howard E. Payne:

None, Your Honor and I had hoped to urge that upon this Court, that their — and it’s a little out of context, but it doesn’t make a lot of difference.

The term regularly engaged in the practice of law is a confusing thing not only to the appellant in this case, but obviously to all who would think about the term.

Now, would that mean that if Mr. Martin tried two cases a year, or ten cases a year in Missouri under his Missouri license, that a court would say that he was regularly engaged in the practice of law, that is one of the imponderables of this rule and we think for reason of being so indefinite and ambiguous and —

Hugo L. Black:

So far as —

Howard E. Payne:

— none of certain of ascertainment that it ought to vitiate and strike down these rules that have been —

Hugo L. Black:

So far as —

Howard E. Payne:

— adopted by the court.

Hugo L. Black:

So far as your client is concerned, is he regularly engaged in the practice of both states, does he have an office in both states?

Howard E. Payne:

That is correct, Your Honor.

My client has —

Hugo L. Black:

Although he resides — he resides in Kansas and has a citizenship and voting there.

Howard E. Payne:

My client resides in Kansas, he maintains a law office in Kansas, he practices in Kansas, and had for 10 years prior to the promulgation of these rules.

Now, he also maintains an office or in the State of Missouri, which is only six to eight miles from where he lives.

He lives at Mission, Kansas and Kansas City, Missouri and he maintains an office in the Bryant Building over there, a matter of six or eight miles to go to his office over there.

Six to eight miles from where he lives?

Howard E. Payne:

From where lives.

(Inaudible)

Howard E. Payne:

That is correct, that is correct, Your Honor.

Hugo L. Black:

I don’t see why you emphasize the fact that this law was passed, the rule that was promulgated by your court, whichever you would say, after he went into the practice in both states, why, what do you think that would —

Howard E. Payne:

Well–

Hugo L. Black:

What weight would that have?

Howard E. Payne:

In this respect, Your Honor, for 10 years at least, for 10 years from 1940 to 1950, if these rules have any basis at all, it must — a necessity be predicated upon the competency of the lawyer in an attempt to make lawyers more competent in Kansas.

Now, for 10 years, there was no question with regards to the competency of the qualifications of my client Mr. Martin to practice law in Kansas.

And then almost overnight, Mr. Martin by the promulgation of these rules, and law was placed in the same category as in lawyer who had no license to practice in Kansas who had no residence in Kansas, and who had no office in Kansas, he was placed in that same category.

And I say in the brief I’m — that I have left that when they do that, take away the competency and the qualification after 10 years of no complaint about, and indeed, there isn’t any complaint in anywhere here about Mr. Martin’s competency.

The Attorney General of the state has filed a brief in this case and says on page 2, as to his professional qualifications and his personal character, there is no question.

But when they take it away Your Honor, in that fashion and manner, that is the thing that forms the basis for much of the appellant’s complaint.

Earl Warren:

Mr. Payne, we’ve taken most of your time answering questions.

I’m going to give you five more minutes to make your argument.

Howard E. Payne:

Very well.

Earl Warren:

And of course, I’ll give the other side, equal amount of time.

Howard E. Payne:

Very well.

Well, as I have said to the Court previously, they are saying that we are complaining about here is that the court passed these rules and disqualified or put Mr. Martin in a classification that we think is not real nor not warranted.

And what I have said about Mr. Martin would go to those other attorneys if I may speak briefly upon classification in the little time that I have left here.

I think this Court has said many times that you cannot have a wholly arbitrary standard or a consideration that offends the dictates of reason and that there must be some rational connection with a person’s fitness and capacity to practice law.

Now, weighing these rules in the light of those general statements that has governed this Court in other decisions, surely it cannot be said that after all of the years of practice that Mr. Martin either had the privilege or the right to indulge in, and I’m not so concerned about that, surely can it be said that now simply because Mr. Martin continuing in the same method and mode that he followed previously also engages in the practice of law in the state of Missouri has now become incapacitated, incompetent, or not qualified to practice law in Kansas without being associated.

And having associated with him a local lawyer with all of the incidents of pay or economics or whatever may be concerned with that.

We think that any classification, Mr. Martin upon that score is an unreal thing and of course, it not only offends the dictates of reason but it is an unsubstantial and not a logical classification.

To say that here is a Kansas lawyer with all of the requirements of even being a local lawyer that is as to admission of the Bar, residency, and maintenance of an office, and to say now, he’s different, he is different, and he has counsel in this case and I practice only in Johnson County, except occasionally, that he is different now than his counsel merely because he goes two or three miles over into the State of Missouri, where his office is located in Kansas goes over two or three miles into the State of Missouri and practices law over there.

William J. Brennan, Jr.:

Well, Mr. Payne, have you any comment on the ground taken by your Supreme Court that it was difficult often in connection with the processing of cases or appearances before a court —

Howard E. Payne:

Yes sir.

William J. Brennan, Jr.:

— to secure the attendance of these lawyers who also had offices in the Missouri side?

Howard E. Payne:

Well of course, I —

William J. Brennan, Jr.:

I gather this doesn’t go to the competency, does it?

Howard E. Payne:

No.

William J. Brennan, Jr.:

But rather administration?

Howard E. Payne:

It goes to the administration of the courts, of course, I never — in no event could apply it to the appellant in this case for the reason that he has got an office, he’s a member of the Kansas Bar, and he actually practices over in the State of Kansas, in the courts of that state.

Howard E. Payne:

Now, a personal observation, pardon me, personal reference, I have practiced adjacent to Kansas City, Missouri, and the Missouri Lawyers for 35 years.

I have never known the Missouri Bar or attorneys in the State of Missouri to be more dilatory and recreating their attendance upon the court than many Kansas lawyers.

William J. Brennan, Jr.:

Yes, but I take that the posture of the cases before us, we have to take this finding of your Supreme Court, do you not?

Howard E. Payne:

Well, if it is based upon something substantial and reasonable.

William J. Brennan, Jr.:

Well, I don’t know.

What is this based on some evidence that was taken or what?

Howard E. Payne:

No, it was based upon the judicial finding, taking judicial notice they have said of that, and some — there is no evidence taken in the case Your Honor, but in any event, they do not ascribe any of those things that are spelled out by what Your Honor has mentioned.

They do not ascribe any of those things to the appellant in this case, Mr. Martin.

There is no indication at all, either in judicial notice of the court or in any testimony or on the record, anywhere that Mr. Martin has ever failed to respond to the call of the docket of the court in Kansas or otherwise.

Is this the main subject if I recall, at the Kansas Bar, (Inaudible)

Howard E. Payne:

Yes, sir.

Your Honor, he is still a member of course of the Kansas Bar on any malfeasance or misfeasance on the part of Mr. Martin would be subject to disciplinary action or to disbarment.

Felix Frankfurter:

Mr. Payne.

Howard E. Payne:

Yes, sir.

Felix Frankfurter:

If this case should be dealt with or decided with reference to the particular honorific facts relating to Mr. Martin, as though we had the individual case of Mr. Martin before us, a case that you picture, a case to fake hardship or unfairness, colloquialism, or call it of what you will?

Howard E. Payne:

Should it be decided solely upon his status, Your Honor?

Felix Frankfurter:

Yes, yes.

Howard E. Payne:

No, I think not.

I think it’s —

Felix Frankfurter:

I mean, his status, but his — his special circumstances?

Howard E. Payne:

Of course —

Felix Frankfurter:

In naturally taking a very flagrant case properly.

Howard E. Payne:

Of course, the Court has said, I think in probably some of the dissents involving some of these lawyer cases that you have to take into account the factual situation with regard to that particular individual in determining whether or not his constitutional rights had been violated.

But actually Your Honor, this case does go far beyond just Mr. Martin.

My time is up, Your Honor.

Earl Warren:

Well, finish your — finish your thought.

Howard E. Payne:

If the Court could do this, go this far with these rules, then of course, how far more can they go?

That’s it.

Thank you.

Earl Warren:

Mr. Lysaught.

J. Donald Lysaught:

Mr. Chief Justice and May it please the Court.

I would like first to answer a question raised by Mr. Justice Frankfurter.

The correct answer to with was not given with regard to the number of affected sir, at page 27 of the record appears this statement, of that number, an estimated 300 are Kansas licensed attorneys who reside in Kansas but who regularly practice in Missouri.

So, we have a somewhat larger group.

Earl Warren:

What was that number?

J. Donald Lysaught:

Some 300, Your Honor.

Earl Warren:

300.

J. Donald Lysaught:

Now, this —

Felix Frankfurter:

Mr. Lysaught.

J. Donald Lysaught:

Yes, sir?

Felix Frankfurter:

May I ask you this (Inaudible)

J. Donald Lysaught:

If I may answer that in this way, Your Honor, the rule — and I want to get to that next, the rule talks about those and the criterion is made, those attorneys who are licensed in Kansas but who regularly practice in another jurisdiction, that is the touchstone.

Felix Frankfurter:

(Inaudible)

J. Donald Lysaught:

I cannot answer as to those who regularly practice in Kansas, Your Honor.

Felix Frankfurter:

(Inaudible)

J. Donald Lysaught:

But I thought that Mr. Justice Frankfurter was attempting to get at the size of the group which is within the scope of Rules 41 and 54, with which we are here concerned.

Felix Frankfurter:

(Inaudible)

J. Donald Lysaught:

I think not, Your Honor, because somewhere along the line would be a factual determination which in this case has been pleaded by Mr. Martin that he regularly practices in Missouri, and I don’t think that Mr. Payne, his attorney, will stand before this Court, and tell this Court that Mr. Martin spent anywhere near one-half of his time in any office in Kansas.

It’s just a name on the door, he keeps regular office hours in Missouri and that is one of the things we have here in this petition, Mr. Martin, it was drawn by his counsel not by me, Your Honor.

He alleges that he regularly practices in Missouri and therefore puts himself within the category.

We’re not here on a factual question as to whether Mr. Martin is or is not within the category embraced by these rules.

That has been determined by Mr. Martin.

Earl Warren:

Under the statute, what is the standard for regular practice in another state?

J. Donald Lysaught:

It has not been taken down to the point, Your Honor, of so many hours, no.

Earl Warren:

Well, is there —

J. Donald Lysaught:

The only standard is the —

Earl Warren:

Is there any standard at all?

J. Donald Lysaught:

— is the rule itself, regularly practicing in Missouri.

There are Kansas decisions heretofore on what constitutes law practice.

Earl Warren:

Well, what are they?

J. Donald Lysaught:

For instance, and this applies if it please you, Your Honor, to only — to appearances before the courts, commissions, and boards in the State of Kansas, Mr. Martin can examine abstracts, he can draw bids all he wants in the State of Kansas —

Earl Warren:

Well, that isn’t the question I was asking.

J. Donald Lysaught:

Yes, sir, I’m coming to that.

Earl Warren:

What is required — this practice in the foreign state to constitute practice there (Voice Overlap) —

J. Donald Lysaught:

All of these — all of these things would be embraced, every act within the practice of law.

That is those things which are considered to be the practice of law whether it is trial work, whether it is examination of abstracts, preparation of the contracts, those things that are limited by what the court shaped by excluding the practice of law from those who are not licensed attorneys.

Earl Warren:

But how much of that work do they have to do in the foreign state to bring themselves — to be brought under this rule?

Now, as I understood Mr. Payne, he said that he occasionally tries a case over in Missouri.

J. Donald Lysaught:

Yes, sir.

Earl Warren:

He didn’t say whether he had an office or not, but he said he occasionally tried a case over there.

Now, does he have to just because of that, does he have to acquire a Kansas lawyer?

J. Donald Lysaught:

No Your Honor —

Earl Warren:

But now, what —

J. Donald Lysaught:

— because he is not regularly engaged.

Earl Warren:

Well now, what is the standard under this law that defines regularly engaged?

J. Donald Lysaught:

There is no further definition that — than —

Earl Warren:

Well, isn’t that pretty vague?

J. Donald Lysaught:

— the word “regularly” but I submit to Your Honor, without putting into an equation of hours, that no more self-explanatory definition could be given.

Earl Warren:

It doesn’t say that if he maintains his principal place of business or if he has a regular place of business or anything else, if he just practices over there, is that right?

J. Donald Lysaught:

Regularly.

Earl Warren:

Yes.

J. Donald Lysaught:

Yes sir.

Earl Warren:

Now, if he —

J. Donald Lysaught:

That is —

Earl Warren:

If he lives on half-a-mile on the Kansas side of the line, and his clients have some business over in Missouri, he maintains his office in Kansas but his clients have business over in Missouri quite regularly and he goes over there to take care of them, then he loses his right to practice freely in Kansas, is that right?

J. Donald Lysaught:

I think not, Your Honor.

Earl Warren:

I beg your pardon.

J. Donald Lysaught:

I think not.

Earl Warren:

Why?

J. Donald Lysaught:

Because he is not —

Earl Warren:

That is what I’m —

J. Donald Lysaught:

— regularly engaged in the practice in Missouri.

I frequently go to Missouri.

Earl Warren:

Well — and, do you have to associate anyone in Kansas with you?

J. Donald Lysaught:

No, sir, because I do not regularly engaged in the practice of law in Missouri.

Earl Warren:

Well — well, I understand that, but really what I am trying to find out is if there is any standard at all to determine what is meant by regularly practicing over there?

J. Donald Lysaught:

If that is not a standard, then there is none, Your Honor.

Felix Frankfurter:

But you’re saying is “regularly” is the standard.

J. Donald Lysaught:

Yes, sir.

That is what I am saying.

Felix Frankfurter:

(Inaudible)

J. Donald Lysaught:

Yes, sir.

Felix Frankfurter:

(Inaudible)

J. Donald Lysaught:

Yes, sir.

Felix Frankfurter:

(Inaudible)

J. Donald Lysaught:

I don’t think so, Your Honor.

Felix Frankfurter:

(Inaudible)

J. Donald Lysaught:

I would say maybe the law itself, maintains an office in a bank building in Kansas City, Missouri and I believe he has his name on and off his door out —

Felix Frankfurter:

(Inaudible)

J. Donald Lysaught:

That is correct.

Felix Frankfurter:

(Inaudible)

J. Donald Lysaught:

That has been changed.

Felix Frankfurter:

(Inaudible)

J. Donald Lysaught:

That was so, Your Honor.

Felix Frankfurter:

(Inaudible)

J. Donald Lysaught:

I think he is not Your Honor, because he maintains that office in Kansas City Missouri, and during regular office hours, he is in the office in Kansas City Missouri, you can anymore find him in Mission, Kansas during what we consider regular office hours than anything.

Felix Frankfurter:

(Inaudible)

J. Donald Lysaught:

I live in Johnson, practice in Wyandotte, yes, sir?

Felix Frankfurter:

(Inaudible)

J. Donald Lysaught:

I think so, Your Honor.

Felix Frankfurter:

(Inaudible)

J. Donald Lysaught:

I think not, I think when you reach that point, if it please the Court, that at that time, the factual termination would be made —

Felix Frankfurter:

Well, what —

J. Donald Lysaught:

— which we do not have here.

Felix Frankfurter:

What factors —

J. Donald Lysaught:

That somewhere along the line, where you draw the line.

This man says that he regularly practices in Missouri, that is what’s before this Court.

Charles E. Whittaker:

That’s the charge in the complaint isn’t it?

J. Donald Lysaught:

That — that is the appellant’s petition filed in the trial court, yes Your Honor.

Charles E. Whittaker:

If he alleges that he regularly practices in both states?

J. Donald Lysaught:

Yes.

Charles E. Whittaker:

Yes.

J. Donald Lysaught:

But in one place, he says, he regularly practices in Missouri —

Charles E. Whittaker:

And —

J. Donald Lysaught:

— and if we ever get down to that point, then there would — there have to be a factual determination.

Charles E. Whittaker:

Of whether — I don’t understand.

You have to get down to a factual determination of whether it is true that he regularly practices in both states?

Is that what you mean?

J. Donald Lysaught:

Yes, sir.

Charles E. Whittaker:

Do we not here and did not the Kansas Court here have to take this through the unchallenged affirmance of this complaint?

J. Donald Lysaught:

That is correct.

Charles E. Whittaker:

So, there isn’t any factual issue on that —

J. Donald Lysaught:

No.

Charles E. Whittaker:

As far as we now stand.

J. Donald Lysaught:

But if he’s — if Missouri pass such a law, and then we came up on the question of which of these two statues controls —

Hugo L. Black:

Why would it have to be both, why couldn’t both of them?

J. Donald Lysaught:

Sir?

Hugo L. Black:

If one — I don’t understand why you have to choose between them, I don’t want to interrupt —

Charles E. Whittaker:

(Inaudible)

Hugo L. Black:

What I meant was that — I don’t see why there’s a which, if one could do it, I suppose the other could do it, I don’t —

J. Donald Lysaught:

Yes, sir.

But it has not been done today.

Hugo L. Black:

I understand that, but he’s asking you on the basis of whether or not he could, and I frankly do not see why it couldn’t, if one —

J. Donald Lysaught:

I do not argue, Your Honor, that he could not.

Hugo L. Black:

Yes.

J. Donald Lysaught:

I do not make that argument.

Charles E. Whittaker:

I don’t see why in factual determination except — because no other man was regularly practicing in both states.

If you’re regularly practicing in both states, I assume, that if one state didn’t say that you have to hire a lawyer in the other state, so could you in its neighbor.

J. Donald Lysaught:

I so assume also.

Earl Warren:

What is the requirement for a foreign lawyer who has no connection with the State of Kansas when he comes into your state?

J. Donald Lysaught:

He would take an entrance examination.

Earl Warren:

No, no, no, I mean for a specific piece of business.

Could —

J. Donald Lysaught:

A foreign lawyer who comes in —

Earl Warren:

Yes.

J. Donald Lysaught:

— to appear before a court, Board or Commission —

Earl Warren:

Yes.

J. Donald Lysaught:

— in the State of Kansas?

Earl Warren:

Yes.

Can he do it by — can he do it by doing the same thing that this lawyer does by associating with him?

J. Donald Lysaught:

Yes, sir.

Earl Warren:

He can?

J. Donald Lysaught:

Yes, sir.

Earl Warren:

So you make no distinction then between foreign lawyers and lawyers who are admitted to practice in Kansas and who operate as this practitioner does.

J. Donald Lysaught:

That is correct.

Earl Warren:

You put them all on the same basis.

J. Donald Lysaught:

That is correct.

Hugo L. Black:

Could you give us the history of this rule or if it was a law, a statute passed, if you have it.

J. Donald Lysaught:

There was a —

Hugo L. Black:

I assume, it seems to me like it’s being argued on reasons that probably not the main reasons, and I don’t see why the main reason shouldn’t be presented, lawyers and their fee — and it might be that the state would be interested in their fees —

J. Donald Lysaught:

Well —

Hugo L. Black:

In preserving their right to get their part of representation.

Who backed this movement before it was – rule was promulgated, who asked for it?

J. Donald Lysaught:

Mr. Justice Black, I cannot answer that.

I came into this case in August of this year.

I do know, and I will say this to you, I do know that there was interest shown by the bar associations after the rules were passed and when the pinch was felt.

I cannot tell this Court, yay or nay, whether that interest was displayed in the promulgation of these rules.

Hugo L. Black:

Of course that — if they have motive of lawyers to do something, it would necessary to invalidate your law, but I was asking because I think I’ve noticed recently that there are quite a number of places where the lawyers have been backing movements of this kind, I think right here, and in the city of Washington.

With reference to having people register or not register, but divide up their fees, which is a very understandable motive or desire on the part of the bar.

But it’s not limited, is it, to your section on the contrary, this kind of law?

J. Donald Lysaught:

No, sir.

This — I do not know of other situations in the United States.

This and we have been speaking here this morning of only the borderline between Kansas and Missouri.

Kansas also borders on Oklahoma.

There’s a case from that jurisdiction in my brief showing what can have.

We border on Colorado —

Hugo L. Black:

What is —

J. Donald Lysaught:

We border on —

Hugo L. Black:

What is it they can have?

J. Donald Lysaught:

All right, here, Your Honor, is this situation — there was a lawyer licensed to practice in Kansas, practice regularly in Oklahoma, he resided in Oklahoma, but to me, residence doesn’t mean a lot.

It is one criteria and one thing demanded at many states.

But to me, it has nothing to do with professional competence.

A carpenter can live 80 years in Kansas, and not be qualified to practice law.

This lawyer, relying upon, apparently, upon his knowledge and everyday usage of the law of Oklahoma, came in to Kansas, and he filed his action in the wrong court.

Hugo L. Black:

That sometimes happened in the state with reference to the —

J. Donald Lysaught:

I do not —

Hugo L. Black:

— the knowledge of the rules (Voice Overlap) —

J. Donald Lysaught:

I do not say that this is a cure all and end all, Your Honor.

But I do say —

Hugo L. Black:

I thought you —

J. Donald Lysaught:

— that the Supreme Court of Kansas has a right to expect that beneficial effects will flow from requiring that lawyers who regularly practice outside of the jurisdiction will have associated with them, counsel who regularly practice in the judicial district in which that case is pending.

For this reason, it’s mere human nature, but human nature is why we need laws.

Earl Warren:

With what I saw, do you — you’re admitted to practice in both states, aren’t you?

J. Donald Lysaught:

No, sir.

Earl Warren:

Kansas and Missouri.

J. Donald Lysaught:

I am not admitted to practice in Missouri.

Anytime I go to Missouri, I associate local counsel in Missouri.

Earl Warren:

Well, you are not associated — you’re not admitted to practice, you would have to —

J. Donald Lysaught:

That is right.

Earl Warren:

— (Voice Overlap) in any circumstances.

J. Donald Lysaught:

That is right.

Earl Warren:

Yes.

Hugo L. Black:

Do you shy away from the argument that the state could classify, make a classification in order to protect its lawyers and their rights to fees, on the basis that that’s not in the case because you think the others found them.

The rules of referenced to — or the standards used in determining what denies Equal Protection, are pretty broad.

J. Donald Lysaught:

Yes, sir.

I don’t shy —

Hugo L. Black:

I am not saying that that wouldn’t be —

J. Donald Lysaught:

I don’t shy —

Hugo L. Black:

— (Voice Overlap) wouldn’t be a denial, but —

J. Donald Lysaught:

Because what we have in this case, and two or three places in the appellant’s brief, the client call was supposed ex post facto judicial notice of the Supreme Court of Kansas.

But in the opinion of that court, what the court says is, that prior to the promulgation of these rules, we took judicial notice, they could not only take judicial notice.

They could do as any other Court does, have judicial conferences and take actual notice of those things that were obstructing, hindering or having a detrimental effect on the administration of the law in Kansas, that was done — these rules, as Your Honor asked before, these are legislative in nature.

I don’t question that at all.

And I don’t question that they are subject to the Due Process and Equal Protection Clause.

Being legislative in nature and being promulgated as rules by the court, and not as a decision of the court on a matter before that court, the Supreme Court of Kansas not only had the right, but in my opinion, have the duty to ascertain all they could.

Then, in the opinion, they set out their reasons why they felt that the promulgation of these rules was necessary, and a question was asked —

Hugo L. Black:

Suppose they extend it to the county, I suppose, there’s ample reason to believe that if the man being tried for defense in a county a hundred miles away from a good lawyer of his own county, said they’ll get a better jury trial and a better trial as a whole, if they’d get a man located — local man, wouldn’t it?

Has this been extended to the county?

J. Donald Lysaught:

No, it has not, Your Honor.

No, it has not.

J. Donald Lysaught:

There is no requirement in that regard though.

When I go to Mr. Payne’s county, I sometimes ask Mr. Payne, because I think it’s to the advantage of my client.

Earl Warren:

I couldn’t —

Hugo L. Black:

Yes, that’s frequently (Voice Overlap), I agree with you.

J. Donald Lysaught:

But this is not mandatory at all, Your Honor.

Earl Warren:

Mr. Lysaught.

J. Donald Lysaught:

Yes.

Charles E. Whittaker:

To say that Mr. Martin or one in his class may do office work counseling and the like, but he is stopped only at the courthouse door, is that too your understanding?

J. Donald Lysaught:

Or the door of Boards and Commission, yes, sir.

Charles E. Whittaker:

Now then, what does that do to the Kansas conclusion of competence, saying that he doesn’t have competence to handle one class of law business when they admit he has competence to handle law — other classes or law business.

J. Donald Lysaught:

I think the Supreme Court of Kansas made that distinction in our opinion, if the Court please, on this reason.

They say the trial work demands instant decisions and Your Honor has tried so many lawsuits that I think you can understand the difference between being before that jury, a new question arising and you must make your decision like that, and examining an abstract or drawing a contract and office where you can take two weeks if you want, too, to look up what the law actually is on the subject if you don’t know.

Charles E. Whittaker:

Now on this, If Martin had competence to do the latter, is to try cases, the day before this rule was passed like Kansas, did he lose it by the rule?

Therefore, is the really basis for the so-called cause judicial knowledge which Judge Bassler took.

J. Donald Lysaught:

Your Honor, any law or most law, shall we say, are enacted to cure a situation which has come to the attention of the body, whether it be the Congress of the United States, they pass a law which forbids an Act, which may have been perfectly legal three months before.

The law makes it illegal.

Charles E. Whittaker:

Well, I’m not talking about legality as opposed to illegality.

J. Donald Lysaught:

No.

Charles E. Whittaker:

I’m talking about competence.

I assume that you’ll not be less competent tomorrow than you are today, and I would think that the rule which simply barge you on the basis of competence between today and tomorrow would be wholly arbitrary.

J. Donald Lysaught:

I think not, Your Honor.

If the body studying those rules has studied them and this legislation, the original legislation on this subject goes back to 1935, and has been changed up until this rule was promulgated December 15 of 1958.

Hugo L. Black:

Was there legislation?

J. Donald Lysaught:

Sir?

Hugo L. Black:

Had there been legislation previously?

J. Donald Lysaught:

In 1935, general statute 7104 was enacted by the Kansas legislature.

That applied to foreign attorneys who had not been admitted to the bar.

That was amended in 1947.

In 1958, these rules were adopted.

Subsequently, an attempt was made in the Kansas legislature to avoid the effect of these Court rules.

J. Donald Lysaught:

A bill which was presented to the Kansas legislature is set out in the appellee’s brief in this case.

The legislature refused to enact that bill after hearings which included testimony from trial court judges of Kansas, as to what the situations were that these rules were designed to prevent.

Felix Frankfurter:

But these rules derived from — or justified as based on or authorized by the 47 statute, weren’t they?

J. Donald Lysaught:

Not necessarily Your Honor.

Felix Frankfurter:

I mean could they — could your Supreme Court — your Supreme Court — is this the subject matter as to which legislation could control?

J. Donald Lysaught:

I think that the Supreme Court of Kansas under the constitution of Kansas had the inherent part to pass these rules regardless —

Felix Frankfurter:

But if you take —

J. Donald Lysaught:

— of what the legislature is.

Felix Frankfurter:

If rules were in conflict with the 47 statute, did it?

J. Donald Lysaught:

Sir?

Felix Frankfurter:

It did not think that its rules went beyond or in conflict with the 47 statute.

J. Donald Lysaught:

No, sir.

Earl Warren:

What was the 47 statute?

If in substance provided, that those attorneys not admitted to our bar, would be required to have local counsel with them when appearing before the Boards and Commissions of our state.

Earl Warren:

Well then, it wouldn’t appear to have any bearing on this case at all.

J. Donald Lysaught:

No.

Earl Warren:

Is it because —

J. Donald Lysaught:

Other than — excuse me.

Earl Warren:

They’re foreign lawyers and they have no right to come in to your state and practice law at all.

So, that wouldn’t hardly bear on this subject, would it?

J. Donald Lysaught:

That is correct except —

Earl Warren:

Yes.

J. Donald Lysaught:

— that obviously, the court went on and broadened that, because of its experience.

Earl Warren:

A question was asked —

Felix Frankfurter:

Let’s move on, by foreign lawyers and the 47th statute, did they mean French advocate, an English barrister?

J. Donald Lysaught:

No, sir.

Felix Frankfurter:

(Voice Overlap)

J. Donald Lysaught:

And those who are not admitted to the — not licensed to practice law in Kansas, yes, sir?

Earl Warren:

They’d be in the same position, wouldn’t they, before your courts?

They wouldn’t have any —

J. Donald Lysaught:

Yes, sir.

I believe Mr. Justice Brennan asked a question to Mr. Payne about the difficulty of securing attendance of counsel.

And Mr. Payne answered that the Missouri employers were not dilatory.

I’ve placed no as such blame on the man because he practices in Missouri at all.

But you have the question, Mr. Justice Brennan, of a man with two masters.

He maintains most of this group now.

There are only a few within this group of 300 who go through the pretence of maintaining the law in Kansas.

The rest of them had only one office.

They are in Missouri during all regular office hours.

And when there is conflict between a setting in the Circuit Court of Jackson County Missouri or a setting in the District Court of Wyandotte or Johnson County, Kansas, the Kansas Court settle.

Our first —

(Inaudible)

J. Donald Lysaught:

Judge, the Supreme Court of Kansas before promulgating these rules studied these things, it’s set out in their opinion.

They took notice of it.

I don’t think that it is for this Court under the circumstances of this case to make up its mind whether it should or should not take judicial notice of certifying.

Charles E. Whittaker:

No, I just think it’s our business to determine whether there was any basis for them to do it.

J. Donald Lysaught:

Yes, sir.

Charles E. Whittaker:

Now if Kansas — has Kansas ever, in any way, impaired except by this rule, Keith Martin’s license, its certification of his competence to practice law in Kansas?

J. Donald Lysaught:

His license is still enforced —

Charles E. Whittaker:

No, can he use it today?

Can he use it today?

J. Donald Lysaught:

Yes sir, he can use it —

Charles E. Whittaker:

Alright.

J. Donald Lysaught:

— subjects to the limitation —

Charles E. Whittaker:

Yes.

J. Donald Lysaught:

— established in these rules.

Charles E. Whittaker:

He can use if, can he?

J. Donald Lysaught:

Yes, sir.

Charles E. Whittaker:

If he gets another local lawyer to associate with him, isn’t that right?

J. Donald Lysaught:

If he gets a lawyer as defined by statute who resides and maintains his office in the judicial district in which —

Charles E. Whittaker:

Alright, now I can ask you then, why is it he cannot use the license, his Kansas license, to practice law in Kansas without associating with someone else with him, why?

J. Donald Lysaught:

I will answer that in this manner, if the Court please.

Experience shows that Kansas Court has set out in there, in their opinion that too often, these lawyers who practiced regularly in Missouri, Nebraska, Oklahoma, or Colorado came into the courts of Kansas, and to use a colloquialism, if Your Honor will excuse it, they played it by year.

They regularly practiced over there.

They were accustomed to the procedure over there, so when they came in to Kansas Court, they wouldn’t look up to see what the proper procedure was, but assume it was the same as their.

And with regard to this appellant if it please Your Honor, while Mr. Payne says that he is without fault, there is no question of any blemish on him.

That, we are here on a motion to quash so the facts submitted, the facts in well-pleaded in his petition in mandamus are admitted.

But there is a Kansas reported case in which this appellant failed.

He went up on appeal in a criminal case, his client was convicted.

He failed to tender some motion to — some evidence that has been rejected by the trial court on his motion for new trial.

Now, that’s just an oddity we have in Kansas, but if you don’t do it, there isn’t anything before appellate courts.

He complained that the trial court hadn’t given an instruction to the jury.

No instruction was tendered.

Now, I don’t know under the procedural law of Missouri, if you must present at your motion for new trial, any evidence which is excluded by the trial court.

Charles E. Whittaker:

(Inaudible)

J. Donald Lysaught:

And regularly practice.

Yes sir.

Charles E. Whittaker:

(Inaudible)

J. Donald Lysaught:

And devoted his full time to Kansas practice, yes sir.

Charles E. Whittaker:

(Inaudible)

J. Donald Lysaught:

I don’t think you can make it quite that simple, Your Honor.

And the question is and I was amused that the question asked here before, is this to be dealt with regard to only Keith Martin or with the group which falls within the rules promulgated by the court.

I myself have had just a little bit of difficulty in following an appellant’s brief just which we are here with.

At times, he finds fault and says that the group established is unreasonable.

Well, that would apply to the entire group.

And then at other places in his brief, he says, “Well, maybe these rules are necessarily for some of these fellows, but I am a man of superior ability.”

And he is, there’s no question about that.

“And therefore, they should not be applied to me.”

Well that, if this Court please, and the Supreme Court of Kansas set out to establish a standard on individual ability, I think that would be first thing this Court would strike down.

Potter Stewart:

Mr. Lysaught, in answer to Justice Whittaker a moment ago, you said that he would bring himself outside the scope of this rule only if he devoted his full time to the practice law in Kansas.

Potter Stewart:

That’s not quite true, is it?

J. Donald Lysaught:

No.

Potter Stewart:

Isn’t it true that —

J. Donald Lysaught:

I overstate.

Potter Stewart:

Just let me ask you this.

Isn’t it true that if this appellant spent 95% of his time in the grocery business in St. Louis, Missouri or in Kansas City, Missouri or in the shoe business or around a drug store, or an investment business, or anything else, 95% of the time in Missouri, still he would be entitled to practice law in Kansas anytime he wanted to, without associating a Kansas Lawyer?

J. Donald Lysaught:

Your Honor is correct.

Potter Stewart:

So, he need not devote his full time.

J. Donald Lysaught:

The only criterion, the only standard is the regular practice of law —

Potter Stewart:

So only, if he has a —

J. Donald Lysaught:

— in other jurisdiction —

Potter Stewart:

— only if he practices law in Missouri, that he can (Voice Overlap) —

J. Donald Lysaught:

That is correct.

Potter Stewart:

He can spend all his or 98% of his time doing almost anything else.

J. Donald Lysaught:

That is correct.

Potter Stewart:

That is still not be covered by this rule.

J. Donald Lysaught:

Your Honor is correct.

Potter Stewart:

And not be under an obligation to associate with a Kansas lawyer.

Hugo L. Black:

Suppose this gentleman when he went to try the case with Taylor versus Taylor —

J. Donald Lysaught:

Sir?

Hugo L. Black:

Suppose the gentleman when he had gone to try the case of Taylor versus Taylor out which this seems to be in the beginning, had hired another lawyer like himself who practiced both in Kansas City — Kansas and Missouri.

Would that have been a local lawyer, could he have associated him?

J. Donald Lysaught:

No, there is a statutory definition that goes back behind that, Your Honor, in 7104, that the local counsel must both reside and maintain his office and I think that has been extruded —

Hugo L. Black:

Well, I assume — let’s suppose —

J. Donald Lysaught:

— his sole office in the judicial district —

Hugo L. Black:

Would you say sole office?

J. Donald Lysaught:

I think that has been so construed.

And I think that Mr. Martin in his brief admitted that in substance, he was not authorized to local — to serve as local counsel under that rule, under that statute.

The statute itself does not use that word, but, I think that the appellant himself has taken the position that that cannot be.

William J. Brennan, Jr.:

Mr. Lysaught?

J. Donald Lysaught:

Yes, sir.

William J. Brennan, Jr.:

I know that your Supreme Court, in the opinion said and gave reasons why, at least, in conclusion, that it had power to promulgating this rule, constitutional power.

But apart from that, is there any special rule with less than the Supreme Court, powers of administration of the judicial grist in the lower courts of Kansas?

J. Donald Lysaught:

There is statute which is pointed on in my brief, 60 days, 3825 of the 1949 general statutes which goes back in substantially its present form to 1923, Your Honor, which gives the Supreme Court, the power to make and amend rules or itself and all inferior courts.

I see my time has expired, gentlemen.

Hugo L. Black:

That’s for procedure.

J. Donald Lysaught:

Sir?

Hugo L. Black:

That’s for procedure, is it not?

J. Donald Lysaught:

Rules are (Voice Overlap), yes sir.

Hugo L. Black:

(Voice Overlap) for the regulation of procedure —

J. Donald Lysaught:

Yes, sir.

Hugo L. Black:

— in the Supreme Court.

J. Donald Lysaught:

That is correct.

Hugo L. Black:

You’re citing here to show that they have authority to regulate the law here, is that right?

J. Donald Lysaught:

Yes, sir.

I think so.

Earl Warren:

Very well.