In the late 1980s, while the urban cowboy/country music phenomenon swept Texas, I had several legal matters in the Lone Star State. I decided to obtain a Texas law license through reciprocity, thinking I might set up a satellite office. The Texas admissions rules required all applicants to take the standardized multi-state ethical exam. With eager expectation, I traveled to South Dallas and took the exam while crammed into a grammar school child-sized desk in a room full of very young law students. I was the last to finish the exam.

Once back in Nashville, I visited the Washington Square Post Office daily in anticipation of receiving the pass/fail notification. Finally, it arrived, and I nervously opened the envelope as I walked across 2nd Avenue. My heart dropped when I read my test score was 48. 48! How could I ever explain that to friends and family — 48! Behind closed doors in my office, I finally read the fine print which clearly showed that a perfect score was 50. Relieved, I contacted the Texas Bar about my application for admission by reciprocity. I was promptly told that I was ineligible because “You are from Tennessee and Tennessee has one unaccredited law school.”¹ I told them I graduated from Vanderbilt, an accredited law school, to which they responded, “You don’t understand. You are a ‘foreign lawyer’ as you live in a state with an unaccredited law school. The fact that you graduated from an accredited school means nothing.” Seriously?

Texas took the position that Tennessee was a “non-equivalent state” and therefore lawyers licensed in such states must take the multi-state ethics test and the “short-form exam.” By several accounts, the short-form exam was difficult. It contained a lot of oil and gas questions, which most law schools do not teach. As someone quipped, “It’s mostly gas.”

I asked the Board of Examiners to waive the exam requirement. They denied my request.

So, with my wholehearted and resolute belief that Texas was wrong, I filed a petition with the Texas Supreme Court asking that the Texas rule be declared unconstitutional. The petition was a tad melodramatic. For example, I referred to some of the historical ties between the two states — former Tennessee governor, Lebanon and Nashville lawyer, and Texas hero, Sam Houston, who became the president of the Republic of Texas; judge² and Congressman Davy Crockett and other Tennesseans fought at the Alamo and died for Texas’ independence. Many Tennessee trees had carving of “GTT” (Gone to Texas). There were also similar carvings in Texas (“Gone to Tennessee”). In one newspaper, photos of Houston and me appeared side-by-side.³ The legal dispute was even described by some as a range war between Texas and Tennessee.

Ralph Nader’s Public Citizen Group in Washington, D.C., and its very fine lawyer, Con Hitchcock, were interested and joined the fray, as did my longtime friend, attorney Dudley West. Hitchcock told the press, “When things break down between states, things can get scary . . . These are the kinds of things that usually go in international trade negotiations . . . There are a lot of high-tariff states out there.” The Texas Supreme Court rejected the petition, clearing the way for a federal lawsuit. I sued Texas for civil rights violations and asked that the “non-equivalent state” rule be declared unconstitutional as a violation of the Equal Protection and Due Process clauses of the Fourteenth Amendment. The impact of the lawsuit was potentially enormous. At that time some 18 states had unaccredited law schools, including California and New York. Those two states alone had over 180,000 lawyers practicing at that time. The chairperson of the Texas Board of Law Examiners was quoted as saying, “The strife is nothing new. There’s always someone who feels the rules as applied to them are unfair.”

The Tennessee Bar Association (TBA), in true volunteer fashion, took a bold approach. Texas lawyers had for years been allowed to apply for a Tennessee license without an examination if they had graduated from an ABA-accredited law school, had five years of practice, and met the applicable ethical standards. Then TBA President John Wheeler fired a shot across the bow and declared that Texas’ reason for not allowing me a license was “transparently frivolous: . . . an outrage and perfectly ludicrous.” The TBA Board of Governors quickly asked the Tennessee Supreme Court to suspend reciprocity with Texas. TBA President John Wheeler argued that “as long as Tennessee accepts Texas lawyers from accredited law schools, Texas has the same obligation.” There is no such thing as one-way reciprocity. The Texas rule focuses not on the qualifications of individual applicants, but the qualifications of others not applying for a license — specifically, graduates of unaccredited law schools.⁴

Two weeks after the federal lawsuit was filed, the Texas Supreme Court suddenly reversed itself and invalidated the non-equivalent state rule in order to grant those “foreign lawyers” from non-equivalent states to apply for reciprocity. Texas Justice John Cornyn (now Republican U.S. senator) was the Texas Supreme Court liaison to the Board of Law Examiners. He decided that “the Board’s rule barring Hardin makes no sense.” Years later we met, and he subsequently sent me a handwritten letter saying, “You were right in that lawsuit.” Texas Supreme Court Justice Thomas Phillips was quoted as saying, “this was a recognition of the mobility of law practice, and its increasingly national feel” and “a recognition that the Texas rule did not seem entirely fair, on further analysis.” He also said that the Texas rule was the only one of its kind, and Texas should be in line with other states in making individual qualification the focus of admissions. “This is not just a rule for Mr. Hardin. This is a total re-do.”

Winning the fight for reciprocity allowed me to better represent my clients. I most cherish, however, a letter received from a fellow “foreign lawyer” and Carolina solo practitioner who thanked all involved. Because he could now finally practice in Texas, he could be close to and support his very ill mother who lived there. What I learned is that sometimes you just have to stand up because until you do, you never know for sure who is willing to stand up next to you.

But for the courage and integrity of the Texas Supreme Court and the TBA Board, this lawsuit might have lingered for years. To paraphrase my friend, Attorney John Jay Hooker Jr., “it was the right fight, at the right time, with the right people.” |||

HAL HARDIN is an attorney in Nashville and a graduate of Vanderbilt University Law School. Over his long career, he has served as an assistant district attorney, a special judge on the Court of Appeals, a presiding judge of trial courts, a Circuit Court judge and a presidentially appointed U.S. attorney. Hardin is an emeritus professor at the Nashville School of Law.

NOTES

1. Nashville School of Law (formerly known as the Nashville YMCA Night Law School) is an unaccredited law school which allows students to work at their daily job and go to school at night. In 1911, five recent graduates of Vanderbilt University Law School opened night law classes at the YMCA for the benefit of those unable to attend law classes during the day. It is a tough four-year task to graduate. It has produced many fine lawyers and judges for over 100 years. Proudly, I taught one evening course for 14 years.
2. Crockett may have been the first illiterate judge in Tennessee.
3. The Texas Lawyer published side-by-side photos of a younger Hardin and an older Sam Houston; unfortunately, its archives do not go back far enough to provide a link to the photos.
4. TBA President Wheeler was and is a diehard University of Tennessee fan. When he was contacted recently he commented, “Texas whipped us this year, but we beat the hell out of them in that lawsuit.”