by Michael S. Eldredge
On the official Utah State Bar website, the history of the Utah bar before 1931 condenses into one compound sentence: “The history of the Utah State Bar began in the early 1900s with the association of several Utah lawyers hoping to improve communication within the legal community and to find ways of serving the general public.” See “Utah State Bar History & Purpose,” Utah State Bar, http://www.utahbar.org/public/bar_history_and_purpose.html, (last visited April 1, 2012). Whether because of oversight, or a generally accepted lack of relevance, the result is the same; Utah is forgetting its legal heritage, one that is as unique, colorful, and controversial as Utah’s struggle for statehood and beyond.
The seal of the Utah State Bar has emblazoned on the bottom, the year “1931.” However, regarding the organization of the legal community in Utah, 1931 is misleading. If anything, it merely commemorates the year that the Utah State Bar became integrated; all lawyers practicing in Utah were required to be members. The Utah State Bar became a creature of statute and reformed the entity of organizational existence; the people, the goals and ideals remained the same.
Utah attorneys have a heritage similar to Wisconsin, which organized in 1878. Indeed, the American Bar Association also formed in 1878, but because of its multi-jurisdiction membership it remains a voluntary organization today. Wisconsin, Utah, and several other state bar associations went from elite associations of lawyers whose membership did not include all resident attorneys, to becoming fully integrated by the mid-twentieth century. Perhaps revisiting the legal historical roots in Utah will shed some light on what may be misperceptions by many as a gross oversight of our true legal heritage.
The Organic Act for the Territory of Utah passed on September 9, 1850, as part of the Compromises of 1850. However, Brigham Young did not receive word until the following January 28, 1851, when George Q. Cannon returned from California. Cannon had purchased an old copy of The New York Tribune in Los Angeles in December, delivered from a ship traveling from the Panama overland route. Although chagrined at the changes in area and name of the State of Deseret, Young accepted his appointment as governor. See Orson F. Whitney, History of Utah 452 (George Q. Cannon & Sons Co. 1892-1902.
Justices Lemuel G. Brandenbury and Perry Brocchus arrived in August 1851 and joined by Zerubbabel Snow, a Mormon already residing in the territory, gave Utah its first judiciary capable of admitting lawyers to the bar of the federal courts in Utah. The dubious session, however, ended abruptly as Brandenbury and Brocchus fled the jurisdiction in September 1851 in the famous case of the “runaway judges.” Justice Snow was left behind, and on October 6, 1851, an improvised court seal was adopted. The legislative assembly authorized him to hold district court in all three districts, necessitating him to admit members of the bar in the Territory of Utah. Without addressing the history of the troubles of the bench and bar of the Utah Territory over the next forty years, about which much has been written, suffice it to say that the profession of lawyering had some interesting and colorful challenges.
Throughout the latter half of the 19th Century, lawyers who wanted to practice in the Territory of Utah petitioned the Supreme Court for admission, accompanied by the recommendation of an examination committee. Once being admitted, lawyers were members of the bar of all the courts in the territory, much the same as the federal courts continue to do today.1 In essence, there was a Bar of the Territory of Utah, but no bar association existed until 1884. Years later, the Territorial Legislature memorialized the requirements to be admitted to practice law in Section 3100, Volume 2, Page 214 of the Compiled Laws of Utah (1888), which required an applicant to be: (a) a citizen of the United States, or one who has declared his intentions to become the same in the manner as required by law, (b) that he be over the age of 21, (c) of good moral character, and (d) possess the necessary qualifications of learning and ability. It was the latter qualification that was anything but objective.
Education was an integral part of a lawyer’s admission to a bar. The first law school in America was the Litchfield Law School in 1784, followed some sixty years later by Harvard and Yale, and in 1858 at Columbia. The pattern in all law schools was the same, preparation of the student for apprenticeship by studying works such as Abraham Lincoln recommended: Blackstone’s Commentaries, Chitty’s Pleadings, and Story’s Equity and Equity Pleading. The case method of Socratic learning did not appear until Columbus Langdell instituted it at Harvard in 1870, but by 1900 it was gaining favor over the apprenticeship method as the most efficient way to train lawyers in the eastern population centers. However, most lawyers in the 19th Century did not attend law schools, but rather chose to “read” law under the supervision of an experienced lawyer, and serve as the lawyer’s apprentice. An apprenticeship would last preferably two, even three years before applying for admission to a bar. Indeed, as the website of the American Bar Association states,
The legal profession as we know it today barely existed at that time. Lawyers were generally sole practitioners who trained under a system of apprenticeship. There was no national code of ethics; there was no national organization to serve as a forum for discussion of the increasingly intricate issues involved in legal practice.
“History of the ABA,” American Bar Association, http://www.americanbar.org/utility/about_the_aba/history.html, (last visited April 1, 2012).
It is more than a coincidence that the bar associations began appearing the same time legal education was undergoing changes. Though the territory and state did not have a law school until the University of Utah Law School was founded in 1913, the paradigm was certainly not lost on the lawyers of Utah. Law was becoming a sophisticated and organized profession that had infinitely more objective in admission standards and rules of practice.
On January 8, 1894, Elmer B. Jones called a meeting of several attorneys to order, at the Federal Courthouse in Salt Lake City. After preliminaries, Jabez G. Sutherland, Franklin S. Richards, Richard B. Shepard, William H. King, and L. R. Rogers were appointed to form a permanent organization, constitution, and bylaws of a territorial bar association. See Proceedings of the Territorial Bar Association of Utah 4 (Salt Lake City Magazine Co. 1894).
Sutherland had been a prominent lawyer, judge, and congressman from Michigan, and came west to Utah in 1873 to seek a better climate. Although Sutherland was a “Gentile,” Brigham Young immediately retained him as counsel to the LDS Church. His good friend and colleague, Franklin S. Richards succeeded him. On January 31, 1884, Sutherland had helped organize the Salt Lake Bar Association, and served as its first president. In 1894, he was seeking to broaden the ideals of the local bar association into a territory-wide bar association. See 4 Whitney 529-532.
The meeting was adjourned until January 11 in the Supreme Courtroom. At that meeting, Sutherland presented a constitution and bylaws, and upon their acceptance, he was acclaimed unanimously as president of the new Territorial Bar Association of Utah. The members next elected vice presidents for the four districts of the organization, and included Samuel R. Thurman of Provo, First District; Presley Denny of Beaver, Second District; Charles W. Bennett of Salt Lake City, Third District; and James N. Kimball of Ogden, Fourth District. The membership then elected Parley L. Williams, John A. Marshall, Franklin S. Richards, E. M. Allison, and William H. King to the Executive Council. In addition, the committee on grievances was appointed by President Sutherland, underscoring the importance that the association placed on its relations with the public and policing the profession. The meeting closed with a call to all lawyers in the territory wishing to become charter members of the Territorial Bar Association of Utah could do so by paying their dues within twenty days. See Proceedings of the Territorial Bar Association of Utah 1-4.
On February 16, the association met in the Supreme Courtroom at the Federal Courthouse, and had a general business meeting. The bar association clearly manifested its intent to petition the legislature for inclusion of the bar in statutes to assist the courts in such functions as establishing a territorial law library. The meeting also expressed an intent to be active in drafting a multitude of bills for consideration by the legislature, including rules regulating appeals to the Supreme Court. Finally, 73 charter members out of approximately 350 attorneys in the entire territory were admitted to the association, roughly one-fifth of the lawyer population of Utah with a standing invitation for all to join. In short, The Territorial Bar Association of Utah was doing in 1894 the same activities that The Utah State Bar does today.
On June 4, 1894, the bar association convened for the first annual meeting on June 4, 1894. The association named J. H. MacMillan, H. P. Henderson, and P. L. Williams delegates to the American Bar Association meeting being held on August 20 at Saratoga Springs, New York. Eight more attorneys were admitted at the June meeting, bringing the total to eighty-one. Jabez G. Sutherland gave the President’s address, followed by Ogden Hiles, who spoke on “The Codification of the Law.” Walter Murphy also addressed the attorneys on “The Use of the Writ of Injunction to Prevent Strikes,” which, interestingly enough, held the premise that “equity and good conscience required that the employees should not cease to do their work.” The meeting adjourned until the next annual meeting on January 14-15, 1895. See id.
At the January 1895 gathering, Jabez G. Sutherland was again elected president for the coming year, and the emphasis of the meeting was on the upcoming Constitutional Convention in March. Seven members of the bar association were also delegates to the Constitutional Convention, and the bar was intent on being heard, especially on what would become Article VIII dealing with the Judiciary. Dennis Eichnor and Franklin S. Richards were instrumental in carrying the recommendations to the convention. The bar association admitted thirty-four new members, bringing the total membership to 115, one-third of the lawyers in Utah. After a banquet where the members had a choice of roast turkey or filet of red snapper, the association adjourned. See Report of the Annual Meeting of the Territorial Bar Association of Utah 1-7 (Grocer Printing Co. 1895).
On January 13, 1896, nine days after Utah attained statehood, the association elected Jacob S. Boreman President, and J. G. Sutherland, Franklin S. Richards, and John A. Marshall were appointed delegates to the American Bar Association meeting in August. Upon motion, the word Territorial was stricken from the name of the association, and the new name was adopted, The State Bar Association of Utah. Outgoing President Sutherland and Charles Zane addressed the convention about the change from territory to state and proudly explained the new Utah Constitution. Sixteen new members were added, and two died, bringing the total to 129. See Report of the Annual Meeting of the State Bar Association of Utah, 1-8 (Grocer Printing Company 1896).
And so the bar association went on. After the association elected former U. S. Attorney Charles S. Varian President of the bar association in 1898, there was a three-year period between 1899 and 1901 when there was no annual meeting and interest waned. The membership fell back to about seventy-five attorneys where it remained for several years. In 1902, Varian reconvened the annual meeting. With a renewed sense of purpose, the bar again reiterated the late Jabez G. Sutherland’s call for “men of learning and integrity” as the foundation of the association, which was yet to have a woman member. See Meeting of Bar Association, Deseret News, January 21, 1902, at 5.
Disbarment proceedings increased beginning in 1903, but it seemed that the Supreme Court was loath to take away an attorney’s rights to practice. In the few cases of disbarment of an attorney, it was usually for a short period of approximately sixty days. See Case of Lawyer Silberstein, Deseret News, February 20, 1903, at 2. The bar fulfilled virtually the same function it does today wherein the bar acted as the plaintiff bringing the action in the Supreme Court. One notable disbarment in which the bar participated was Judge Orrin N. Hilton, attorney for the famous Joe Hillstrom, who was executed in Utah in 1915. At the funeral of “Joe Hill,” in Chicago, Judge Hilton uttered contemptuous remarks about the Utah Supreme Court. Hilton was sarcastic in his defense and consequently disbarred on July 6, 1916. See Hilton Disbarment is to be Started in Few Days, Salt Lake Telegram, December 3, 1915, at 9. At the time, however, the Supreme Court did not have a pro hac vice provision, and just admitted to the bar attorneys from outside the jurisdiction based on their own state membership. Further, no provisions existed for reciprocal disbarments in other states, which explains Judge Hilton’s flippant attitude.
On August 16, 1915, the State Bar Association of Utah hosted the American Bar Association’s annual meeting that saw Elihu Root, former U. S. Secretary of State and former Senator from New York, elected ABA President. Former President William H. Taft, a former president of the ABA, was the keynote speaker. Taft had a special affection for Utah because it was one of two states he carried in the 1912 presidential election. See Root is Elected Head of Bar Body, Salt Lake Telegram, August 19, 1915, at 1.
On December 3, 1923, the bar launched a massive campaign to enlist all attorneys in the state to join the association. The goal was to have all the lawyers in the state on the rolls of the bar by January 19, 1924, the scheduled annual meeting of the association. The drive fell short of its goal, but association members had the pleasure of hearing from charter member and newly appointed Associate Justice of the U. S. Supreme Court, George Sutherland (no relation to Jabez). See Utah Lawyers Seek Members, Salt Lake Telegram, December 5, 1923, at 19. By now, the association had gone to two meetings per year format, with the semi-annual meeting being held in January, and the annual meeting in June, which saw Charles R. Hollingsworth of Ogden elected president.
On Tuesday afternoon, July 31, 1928, bar president Richard W. Young opened the annual meeting with a call to incorporate the bar association, and allow the bar to discipline its own members. The “integrated” bar was fast becoming the popular mode of organization among other state bars, and the idea interested an increasing number of lawyers in Utah. At a special meeting held on Saturday afternoon, December 29, 1928 in anticipation of the upcoming Utah legislative session, the bar recommended that the legislature integrate the bar into a corporation, and control the practice of law in Utah by a board of commissioners. See Utah Bar Urges Board to Define Lawyers’ Status, Salt Lake Telegram, December 30, 1928, at 2. In the 1929 session of the Utah Legislature, Senate Bill 16 was introduced for the creation of a commission of the Utah State Bar, but did not succeed in passage. The next opportunity came in the 1931 session, and this time, the bar reorganized, incorporated, and integrated, into statutory control by a board of commissioners. The new Utah State Bar required membership of every lawyer in the state, and expulsion from the bar was tantamount to disbarment. See Utah Bar Association Meets for First Time Since Its Creation by the Legislature, Salt Lake Telegram, June 13, 1931, at 7.
Although it is understandable why the Utah State Bar took a new direction, and reorganized as a different entity effective in 1931, it is clear that the bar considered this a reorganization from an association to a corporation, especially because it maintained much of the old traditions of the association. Perhaps it was the stigma of a voluntary organization that never commanded the attention of all lawyers in the state, or the emphasis that the bar had new power and control. Whatever the reason, the bar adopted on its seal the year 1931, but in reality, it should never have abandoned the year 1894. The example of the State Bar of Wisconsin is germane to this discussion.
The State Bar of Wisconsin, although existing in various forms, has never lost sight of the fact that its predecessor in interest organized in 1878. Since then, it underwent reorganization in 1947, and finally, integrated by order of the Wisconsin Supreme Court in 1956. Still, it claims that the organization was founded in 1878, even though it has existed under different entities. So it should be in Utah. From 1894 to 1931, the State Bar Association of Utah was a living, viable organization. From 1931 to 1991, it became a fully integrated bar. In 1991, the entity was again changed to a nonprofit corporation, but still, fully integrated. Though its organizational entities, membership requirements, and powers changed, it is still of the same persona and spirit that existed in 1894. The identical spirit of learning and integrity continues to this day, manifest in the women and men who make up the Utah State Bar.
1. See Lawrence M. Friedman, A History of American Law, 3d ed., (New York: Simon & Schuster, 1973-2005) 495-500, for an excellent discussion of organizing the bar and admission throughout the United States in latter half of the 19th Century.