Motion to Dismiss — Chen v. Supreme Court of New Jersey

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NO. 80-1738 uitee- 3 cprama Coun, U.S.

N }L J, D

MAY 21 1981

In THE ALEXANC! it STBEMAR,

Supreme Court of the Hniteh Statea’———

Ocroser Term, 1980

LESLIE ANN CHEN,

Appellant,

Vv.

SUPREME COURT OF NEW JERSEY,

Appellee.

On Appeal from the Supreme Court of New Jersey

—

MOTION OF APPELLEE SUPREME COURT OF

NEW JERSEY TO DISMISS

_ <—

James R. Zazzat,

Attorney General of New Jersey,

Attorney for Appellee, Supreme Court

of New Jersey,

State House Annex,

Trenton, New Jersey 08625.

(609) 292-6598

Ermine L. Contey,

Assistant Attorney General,

Of Counsel.

Anprea M. Srxowrrz,

Deputy Attorney General,

On the Brief.

Adame Press Corp., 5 Commerce Street, Newark, N. J. 07102—(201) 623-8611

|

*%

TABLE OF CONTENTS

CouNnTER-STATEMENT OF THE CASE diihditigteiaels

ArcumMent—The challenge raised as to requirements

imposed upon non-residents practicing law in the

State of New Jersey are prematurely presented

in light of pending review of these requirements

by the Supreme Court of New Jersey and are

otherwise not of constitutional significance so as to

warrant plenary review .......-..-.-+-.

NS

APPENDIX:

A—New Jersey Supreme Court Rules 1:12-1

a ici laerniahanineaneieiliotinsiennemameeeneee

B—News Release, dated May 15, 1980 ..................

C—Notice of Petition to the Supreme Court

of New Jersey re: Sackman v. Supreme

2 | ae

D—Response to Petition Filed in the Supreme

Court of New Jersey re: Sackman v. Supreme

Court of New Jersey ............---

E—Excerpt from Interim Report of the Supreme

Court Committee to Evaluate Bar Admission

Requirements, dated May 6, L981 ............-.0+

17

la

4a

8a

10a

ii TABLE OF CONTENTS

PAGE

Cases Cited

American Trial Lawyers v. New Jersey Supreme

Court, 66 N.J. 258, 380 A.2d 350 (1974) ooo. 2, 3, 6, 7

American Trial Lawyers Association, New Jersey

Branch vy. New Jersey Supreme Court, 409 U.S.

467 (1973) . insinesiahaaeccnisineseetnaciaiadinsincbiieananiiti 8

Aronson vy. uiiliaie 479 F.2d 75 (8rd esi cert.

denied 414 U.S. 854 (1973) . ; 12

Baldwin v. Montana Fish and Game hidiate 436

a TO lactis saat ies Oe 13

Bradwell v. The State, 16 Wall. 180 (1872) oo. 9

Brown vy. Supreme Court of Virginia, 359 F.Supp.

549 (18.D, Va.) aff'd 414 U.S. 1084 (1973) oo... 9, 11, 14, 15

Chimento v, Stark, 353 F.Supp. 1211 (D. N.H.) aff’d

a, I cia 12

Corfield v. Coryell, 6 F. Cas, 546 (C.C.E.D. Pa, 1825) 18

Deason v. United States District Court for the Dis-

trict of New Mexico, 574 F.2d 504 (10th Cir.) cert.

denied 439 U.S. 866 (1978) oo... ccccccececscccccsccesececeees 12

Drociak, In re, Docket No, 80-806, 49 U.S.L.W. 3514

(January 19, 1981) app. dis. cert. denied 2.0.0.0... 12

Goldfarb v. Virginia State Bar, 421 U.S. 773 (1975) .... 8

Gordon v, Committee on Character and Fitness, 48

N.Y.2d 266, 397 N.E.2d 13809 (Ct. App. 1979) 0.0... 13

Hawkins vy. Moss, 503 F.2d 1171 (4th Cir. 1974)

cert. denied 420 U.S, 928 (1975) occ ceccccccceseee 12,13

IL.P. Hood & Sons v. Dummond, 336 U.S. 525 (1949) 16

Hughes v. Oklahoma, 441 U.S. 322 (1979) woo 16

a’

TABLE OF CONTENTS iii

PAGE

Konigsberg v. State Bar of Califorina, 353 U.S. 252

SESITUPTTET hs - nsec ibirbinsainipanitnitione annsitiaiaaindy 10

Leis v. Flynt, 439 U.S. 488 (1979) ...............ceccscecsssecrees 8-11, 13

Lockwood, In re, 154 U.S. 116 (1894) eee eeeeeeee 9

Louisiana Power & Light Co. v. City of Thibodaux,

eR CP ND © iicieisncdsinicenninscsrsehbinndesiabiatiaiendciieenscins 8

Martin v. Davis, 187 Kan. 473, 357 P.2d 782 (S.Ct.

1960) app. dis. sub nom. Martin v. Walton, 368

A a I cites ercesnennteninidinnseseictassniehaninnisaiibaiaoheposisnaian 10, 15

McCarthy v. Philadelphia Civil Service Commission,

424 U.S. 645 (1976) . ; 12

Moore v. Sims, 442 U.S. 415 (1979) .2.........ccccssecceseeseeees 8,9

NBC, In re, 64 N.J. 476, 817 A.2d 695 (1974) .2000... 7

Norfolk and Western R. Co. v. Beatty, 400 F.Supp.

234 (S.D. Tll.), aff'd 423 U.S. 1009 (1975) ................

Ohralik v. Ohio State Bar Ass’n, 486 U.S. 447 (1978) 8

Philip J. LiVolsi, In the Matter of the Application

of, ——N.J. . A.2d —— (1981) .............. 3, 4, 6

Picard v. Connor, 404 U.S. 270 (L971) ..nceccccccesseenees 9

Pike v. Bruce Church, 397 U.S. 187 (1970) ...0..2... 16

Primus, In re, 436 U.S. 412 (1978) .................cccocecsccseees 15

Railroad Commission v. Pullman Co., 312 U.S. 496

ON RE ATTEN ee OR 8

Sheley v. Alaska Bar Association, 620 P.2d 640 (Alas.

S.Ct. 1980) 13

Silverman v. Browning, 414 F.Supp. 80 (D. Conn.),

og BO Rik Re ee eee 9

iv TABLE OF CONTENTS

PAGE

State v. Rush, 46 N.J. 399, 217 A.2d 441 (1966) ............ 2,3

Sununu v. Stark, 383 F.Supp. 1287 (D. N.H. 1974)

Re is BU CATO) icc eccsteetitescaccesciens 12

Underhill Associates Ine. v. Coleman, 504 F.Supp.

Pe I ON OD eis ek i 13

Wilson v. Wilson, 416 F.Supp. 984 (D. Ore. 1976)

ek mS eh 5 ea TE 12

United States Constitution Cited

Article I, Section 8, Clause 8 o..........-..ccccecccccsscsccceseccesss 5

Article IV, Section 2, Clause 1 ooo..eeccccccccccccsseccecccceceeees 5

Fen LE AY ST, Te 10

Fourteenth Amendment .................cscccccsesesececesecceseee 2, 3, 5, 6, 17

New Jersey Constitution Cited

1947—

Article VI, Section II, Paragraph 3 ow... 2

Statute Cited

28 U.S.C.:

| | SNS One nee Ree Ree ce ae 5

New Jersey Supreme Court Rules

NE EPTNUITEL Sassi esitdasteliptcbasescheliciabidiabieckis cena aatdcaetaiein antideedasdbveit 3

TABLE OF CONTENTS v

Rule 1:20A-1 ..... ileheievciisniniehindaatsenia 6

BN AIPIIED nescotsnsniinsarennieseianceseiemnivicttenemnnens +

I RUE <uisisaibencossbaeeisouicrscninteniviclintcdaasanninmnanelatiaitiebbtns 4

Rule 1:25 wn oipeoeiiaebiicaspnanionsdhiiamibiianiation 4

4

4

4

SIE TA IIPRIICTD © isch ecasrenensibsccieneaninesbnnsateanentadinomabapsienenaianes

I TONED Sicncsereticcceicaimnienpniniisinesoovoenanenn

United States Supreme Court Rules

RnR ENTE EAT ORR 1, 2,6

ETS OE 1

NO. 80-1738

IN THE

Supreme Court of the United States

Octoser Term, 1980

»

a

LESLIE ANN CHEN,

Appellant,

Vv.

SUPREME COURT OF NEW JERSEY,

Appellee.

On Appeal from the Supreme Court of New Jersey

Qs

MOTION OF APPELLEE SUPREME COURT OF

NEW JERSEY TO DISMISS

The appellee Supreme Court of New Jersey respect-

fully moves pursuant to Rule 16(1)(d) to dismiss this

appeal on the grounds that the constitutional issues pre-

sented may be mooted or presented in a different pos-

ture upon completion of pending State proceedings. Al-

ternatively, the appeal must be dismissed pursuant to

Rule 16(1)(b) since the questions presented are so in-

substantial as to obviate further argument. Finally, since

appellant raises a contention as to violation of the Pri-

vileges and Immunities Clause of the Fourteenth Amend-

ment, which was not raised or expressly passed on by

appellee, this Court pursuant to Rule 16(1)(b) lacks juris-

diction to consider the issue.

Counter-Statement of the Case

With the adoption of the 1947 State Constitution, the

existing decentralized regulation of the legal profession

in New Jersey was revamped to establish the Supreme

Court of New Jersey, the State’s highest appellate Court,

as the exclusive regulator of the practice of law in the

State.* Thus, Article VI §II par. 3 of the New Jer-

sey Constitution provides that the Supreme Court of New

Jersey,

“shall make rules governing the administration of

all courts in the State and, subject to law, the

practice and procedure in all such courts... [and]

shall have jurisdiction over the admission to the

practice of law and the discipline of persons ad-

mitted.”

As consistently interpreted by the Supreme Court of New

Jersey, this constitutional provision empowers the Court

to establish and supervise the obligations and conditions

as to the practice of law from admission to disbarment

and in “every area in which unjust or unethical con-

duct might afflict the public at the hands of those ad-

mitted by the Court to the practice of the law.” American

* Prior to 1947, control over the admission of attorneys to the

practice was fragmented with the former Supreme Court recom-

mending and the Governor approving the licensing and admission

of attorneys to practice in the State. State v. Rush, 46 N.J.

399, 411-412, 217 A.2d 441, 447 (1966).

Trial Lawyers v. New Jersey Supreme Court, 66 N.J.

258, 264, 330 A.2d 350, 353 (1974). See also In the Mat-

ter of the Application of Philip J. LiVolsi, —— NJ.

, A.2d (1981), State v. Rush, supra at

410, 217 A.2d at 447.

In the exercise of its constitutionally delegated powers,

the Supreme Court of New Jersey establishes the con-

ditions for plenary licensure of attorneys in the State.

Prior to 1969, the rules promulgated by the Supreme

Court of New Jersey precluded admission to the State

bar of non-domiciliaries (See N.J. Ct. R. 1:12-1) (Ral).*

Effective in 1969, however, the rule was amended to allow

for the admission of attorneys residing out of state who

maintained a principal law office in New Jersey (Ra3). This

provision was retained in the subsequent and latest modi-

fication of the rule in 1978, requiring domiciliaries, as

a condition of licensure, to henceforth establish a bona

fide office in the State. See N.J. Ct. R. 1:21-1(a) (Ab4).

The prospect of future retention of the rule, however,

remains in doubt, as a result of the Supreme Court of

New Jersey’s appointment in 1980 of a Committee to Evalu-

ate Bar Admission Requirements. In addition to review-

ing the adequacy of current bar examination procedures

(Ra4), the Committee also has been delegated the re-

sponsibility for investigating “other matters affecting the

number of attorneys admitted, such as post-admission

residency requirements, the recognition to be given ad-

mission or examination in other states, and the like.”

(Ra6). The preliminary recommendations of the Com-

* As used throughout Ra refers to the appendix to this motion

to dismiss; Ab and Aa as used throughout refer respectively to

appellant’s Jurisdictional Statement and the appendix thereto.

es

tea,

4

mittee have been released (Ral2 to Ral4) with its final

report, including its proposals regarding R. 1:21-1(a), an-

ticipated to be issued in July 1981 (Ral0). Public hearings

regarding the preliminary report are also scheduled to be

conducted this spring.

The appellant, a domiciliary of and licensed attorney in

the Commonwealth of Pennsylvania, applied for admission

to the bar of the State of New Jersey on August 28, 1980.

As of that date, she was employed as a member of the

Territorial Law Department of Sears, Roebuck and Co.

with its principal offices in St. Davids, Pennsylvania (Aa8

4). Having satisfactorily completed the requirements for

temporary admission to the New Jersey bar, see N.J. Ct..

R. 1:24-1(¢), 1:24-2(d), 1:25, 1:26 and 1:27-1(d) (Ab5 to

Ab6), appellant on December 18, 1980 was issued a tempo-

rary license to practice law in New Jersey. Pursuant to

N.J. Ct. R. 1:24-2(d) appellant was thereafter required to

file “[pJroof of compliance” with N.J. Ct. R. 1:21-1(a):

namely, domicile and establishment of a bona fide office in

New Jersey, or if a non-domiciliary, the maintenance of a

“principal office for the practice of law” in the State (Ab4

to Abd). In its stead and rather than requesting through

a petition for review that the Court exercise its original

jurisdiction and consider the constitutionality of R. 1.21-1

(a), see In the Matter of the Application of Philip J. Li-

Volst, supra, appellant on January 6, 1981, filed with the

Supreme Court of New Jersey a petition requesting exten-

sion of time in which to comply with R. 1:24-2(d) or alter-

natively, waiver of the R. 1:24-2(d) requirement and issu-

ance of a plenary license, notwithstanding her conceded fail-

ure to establish domicile or a principal place of business

within the State (Aa7 to Aal0). As grounds for the grant-

ing of her petition, appellant urged that application of

N.J. Ct. R. 1:24-2(d) and 1:27-1(b) and (d) was unconsti-

tutional because the distinctions drawn between domicili-

-

5

aries and non-domiciliaries therein violated the require-

ments of Article IV §2 el. 1 (The Privileges and Immuni-

ties Clause), Article I §8. cl. 3 (Commerce Clause) and the

equal protection clause of the Fourteenth Amendment of

the United States Constitution (Aa9).* By order dated

February 5, 1981, the appellant’s motion for issuance of a

plenary license was denied; her motion for extension of her

temporary license was granted through July 18, 1981

(Aal).

On or about April 6, 1981, appellant filed a Notice of

Appeal from this Order with this Court pursuant to 28

U.S.C. §$1257(2) (Aa4). Appellees have filed the within

motion to dismiss pursuant to R. 16(1)(b) and (d) on the

alternative grounds that the outcome of pending State pro-

ceedings** may moot or redefine the constitutional issues

* Appellant therein further alleged that as of December 18,

1980, she had maintained and would, if granted plenary admission,

continue to maintain a “bona fide” office in Moorestown, New

Jersey (Aa8 95). No information regarding the regularity of

her current or future attendance at the Moorestown office or addi-

tional presence in New Jersey was proffered however.

** In addition to the ongoing review inter alia of N.J. Ct. R.

1:21-1(a) and 1:24-2(d) by the Committee to Evaluate Bar Ad-

mission Requirements there is currently pending before the Su-

preme Court of New Jersey a Petition for Review of the con-

stitutionality of R. 1:21-1(a) (Joy Mark Sackman v. Supreme

Court of New Jersey, Docket No. 18,361) in which the identical

constitutional issues presented herein as well as others are posed

(see Ra8 to Ra9). The Attorney General of New Jersey has urged

the Court to grant review of the petition (Ral0). If, as antici-

pated, review is granted by the Supreme Court of New Jersey, ap-

pellant herein would have standing to move to intervene in those

proceedings and to seek a further extension of her temporary li-

cense pending completion of the Court’s review of the consti-

tutionality of R. 1:21-l(a).

r*

6

and because the constitutional questions posed are of in-

sufficient merit to warrant plenary argument before the

Court. Additionally, pursuant to R. 16(1)(b), appellee con-

tends that this appeal should be dismissed to the extent

_ that it raises the issue of violation of the Privileges and

Immunities Clause of the Fourteenth Amendment (Ab4),

a contention never raised or expressly passed on below

(see Aa9).

ARGUMENT

The challenge raised as to requirements imposed

upon non-residents practicing law in the State of New

Jersey are prematurely presented in light of pending

review of these requirements by the Supreme Court of

New Jersey and are otherwise not of constitutional

significance so as to warrant plenary review.

As the exclusive regulator of the practice of law in the

State of New Jersey, the Supreme Court of that State,

appellee herein, has repeatedly recognized its responsibili-

ties among others to maintain public confidence in the judi-

cial system. See In the Matter of the Application of Philip

J. IiVolst, supra. The “constitutional reposition” of this

power in that Court thus mandates its “full and responsi-

ble use”, “never from a myopic viewpoint, but fully and

truly in the public interest.” American Trial Lawyers v.

N.J. Supreme Court, supra, 66 N.J. at 263, 330 A.2d at 353.

Where valid questions thus arise as to the continued need

or viability of its rules or their validity, the Supreme

Court of New Jersey has unhesitatingly undertaken an ex-

amination of the challenged policies. See In the Matter of

the Application of Philip J. LiVolsi, supra (review of con-

stitutionality and desirability of Fee Arbitration Commit-

tees, N.J. Ct. R. 1:20A-1 et seq., requiring arbitration of

3

7

attorney fee disputes upon a client’s request (whether the

lawyer consents or not) or upon a lawyer’s request if the

client consents; constitutionality of procedures upheld;

need for amendment of rules to provide for limited right

of appeal acknowledged); American T'rial Lawyers v. NwJ.

Supreme Court, swpra (constitutionality of rule establish-

ing graduated schedule of maximum contingent fees for

tort litigation upheld); In re NBC, 64 N.J. 476, 317 A.2d

695 (1974) (Canon of Judicial Ethics barring courtroom

sketching during court sessions or recesses modified). As

that Court has recognized:

“Our rules are never immutable. Applications for

their review are never foreclosed [for] ... [t]he

Court does not adopt its rules to promote or brook

injustice, but, as best it can, to secure justice...”

American Trial Lawyers v. N.J. Supreme Cowrt,

swpra, 66 N.J. at 267, 330 A.2d at 355.

In conformity with this policy, the Supreme Court of

New Jersey has undertaken a review of the adequacy

and appropriateness of its admission policies, including

the provisions of its rules challenged herein (Ra4 to

Ra7). Public hearings regarding the recently released

preliminary report of its Committee to Evaluate Bar Ad-

mission Requirements will be held this spring with final

issuance of the Committee’s recommendations scheduled

for July 1981. Additionally, it is likely that the Supreme

Court of New Jersey will exercise its original jurisdiction,

as has been urged by the Attorney General of New Jer-

sey, and consider as an issue of first impression the con-

stitutionality of R. 1:21-1(a) in the context of a petition

for review even more comprehensive in its challenges

than the appeal herein. See Sackman v. Supreme Court

of New Jersey, Docket No. 18,361 (Ra8 to Ra9).*

* As noted previously, opportunity exists for appellant herein

to move to intervene in that proceeding.

e*

-%

8

Under such circumstances where the desirability, scope

and constitutionality of the rule challenged herein will in

all likelihood be reviewed by the Supreme Court of New

Jersey, this Court’s plenary consideration of the pending

constitutional challenge at this time is premature and

unwarranted. As has been often recognized by this Court,

the states have a “compelling interest in the practice of

professions within their boundaries . . . [with] broad |

power to establish standards for licensing practitioners

and regulating the practice of professions.” The states’

interests in the regulation of lawyers however is “espe-

cially great since lawyers are essential to the primary

governmental function of administering justice, . . .”

Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975).

See also Leis vy. Flynt, 439 U.S. 438, 442 (1979); Ohralik

v. Ohio State Bar Ass’n, 436 U.S. 447, 460-462 (1978).

Federal review of disputes between the regulators of the

bar and attorneys is thus properly viewed as an “extreme-

ly delicate . . .” process. See American Trial Lawyers

Association, New Jersey Branch v. New Jersey Supreme

Court, 409 U.S. 467, 468 (1973). See also Moore v. Sims,

442 U.S. 415, 423 (1979). Moreover, in instances where

the State law challenged might be subject to varying in-

terpretations, which conceivably could moot or modify

the federal constitutional issues and the law has not been

construed by the State courts, review in the first instance

by the State courts has been deemed warranted in order

to avoid “the friction of a premature constitutional ad-

judication .. .” Railroad Commission v. Pullman Co., 312

U.S. 496, 500 (1941). See also Moore v. Sims, supra at

427-430; Lowisiona Power & Light Co. v. City of Thibodauz,

360 US. 25 (1959).

Indisputedly, application of these principles of judicial

economy and comity warrant deferral to the Supreme

Court of New Jersey. Where as here the State has a

9

vital interest in consideration of the necessity for and

validity of its bar admission practices, the State law

challenged is not unambiguous as to its intent, has never

been interpreted by the Supreme Court of New Jersey

and an immediate opportunity for consideration of the

pending constitutional challenge exists, consideration by

this Court of the federal constitutional questions would be

both a premature and an unwise interference with a mat-

ter of primary State concern. See Moore v. Sims, supra,

at 429-430. Accordingly, appellee’s motion to dismiss the

pending appeal should be granted.

Yet even if the constitutional challenge to R. 1:21-1(a)

is not premature and deference to appellee is deemed un-

warranted, the issues presented are of insufficient merit to

warrant plenary consideration of the appeal.”

Contrary to appellant’s contentions, the right to prae-

tice law in the State courts is neither a privilege nor im-

munity of State or United States citizenship nor a right

otherwise independently created by federal law. Leis

v. Flynt, swpra at 442 n.4, 443; Silverman v. Browning,

414 F.Supp. 80 (D. Conn.), aff'd 429 U.S. 876 (1976);

Norfolk and Western R. Co. v. Beatiy, 400 F.Supp. 234

(S.D. Ill.) aff'd 423 U.S. 1009 (1975); Brown v. Supreme

Court of Virginia, 359 F.Supp. 549 (E.D. Va.) aff’d 414

US. 1034 (1973) ; In re Lockwood, 154 U.S. 116, 117 (1894) ;

Bradwell v. The State, 16 Wall. 130, 139 (1872). Like-

wise, the fact of admission to the bar of one State does

not establish any corresponding right to practice in a

* Additionally, as noted supra, the challenge raised as to vio-

lation of the Privileges and Immunities Clause of the Fourteenth

Amendment, which was neither raised nor expressly passed on

below, is improperly presented herein. See Picard v. Connor, 404

U.S. 270, 278 (1971).

10

sister state. Leis v. Flynt, supra at 443. Rather, as has

been repeatedly recognized by this Court, any right to

practice the legal profession is a matter exclusively one

of State law origin and control subject only to the re-

quirement that the State not exercise its power in an arbi-

trary or discriminatory manner or in a way contemplated

to deny First Amendment freedoms. Id. at 442; Konigs-

berg v. State Bar of California, 353 U.S. 252, 273 (1957).

In this regard, this Court has upheld numercus restric-

tions imposed upon nonresidents seeking to practice law

in a sister state. Thus, in Martin v. Davis, 187 Kan.

473, 357 P.2d 782 (S.Ct. 1960) app. dis. sub nom. Martin

v. Walton, 368 U.S. 25 (1961) this Court dismissed for

want of a substantial federal question a challenge under

the equal protection clause to a Kansas statute and rules

of court requiring that an attorney admitted to the Kansas

bar but who also was admitted and regularly engaged

in the practice of law in another State only be allowed

to practice before Kansas courts and administrative agen-

cies if he had the association of a Kansas lawyer. In

upholding the constitutionality of the requirement, this

Court acknowledged the validity of five factors cited by

the Kansas Supreme Court as underlying the restriction:

1) provision to Kansas citizens of the service of a resi-

dent attorney familiar with local rules and procedure

and upon whom service could be made; 2) difficulties en-

countered by Kansas Courts and commissions in obtaining

the presence of attorneys from Missouri; 3) inability of

Kansas-officed attorneys to effectuate service on Missouri-

officed Kansas attorneys; 4) refusal of some Missouri-

officed Kansas attorneys to answer emergency calls; and

5) failure of Missouri officed Kansas attorneys to familiar-

ize themselves with Kansas rules of procedure and prac-

tice, 368 U.S. at 27-28. Notwithstanding the fact that the

11

appellant, a Missouri attorney practicing across the Kan-

sas border, was a resident of and maintained a general

practice in Kansas and was familiar with local Kansas

rules and procedure, this Court concluded that the chal-

lenged Kansas requirement as explicated by the Kansas

Supreme Court constituted permissible regulation of out-

of-State attorneys. The fact therefore of possible “in-

cidental individual inequality” as applied to Mr. Martin

was in this Court’s view insufficient to warrant invalida-

tion. 368 U.S. at 26.

Again in Brown v. Supreme Court of Virginia, 359

F.Supp. 549 (E.D. Va.) (three judge court) aff’d 414 U.S.

1034 (1973) and cited with approval in Leis v. Flynt,

supra, substantial deference was accorded to the Virginia

Commonwealth’s Court’s views as to the best means avail-

able for creating a corps of competent attorneys. There,

a Court rule had been promulgated requiring that out

of State attorneys seeking admission to the Virginia bar

through reciprocity be permanent residents of Virginia

and intend to practice full time in Virginia, In con-

trast, attorneys wio had passed the Virginia bar exam

were not required to maintain Virginia residency or main-

tain a full time practice in the State. Notwithstand-

ing the plaintiffs’ contention that the Rule was anticom-

petitive and discriminatory and solely promulgated to

benefit State attorneys practicing full time in Virginia,

the rule was upheld as a compelling and reasonable re-

quirement to ensure a “responsible bar [to]” full time

service to the public and the proper administration of

justice. 359 F.Supp. at 555, 557, 559-560, 561-562.

A State’s strong interest in demanding a substantial

commitment to the practice of law in that State alone

has also resulted in this Court’s rejection of various con-

12

stitutional challenges to post-admission residency require-

ments. See Wilson v. Wilson, 416 F.Supp. 984 (D. Ore.

1976) aff’d 430 U.S. 925 (1977) (upholding Oregon re-

quirement of State residency at time of admission to

bar in face of equal protection and due process challenge) ;

In re Drociak, Docket No. 80-806, 49 U.S.L.W. 3514 (Janu-

ary 19, 1981) app. dis. cert. denied (exclusion from New

Hampshire bar because of lack of residency challenged

as violation of Privileges and Immunities clause and de-

‘nial of equal protection and due process); Cf. also Mc-

Carthy v. Philadelphia Civil Service Commission, 424 U.S.

645 (1976) (Philadelphia residence requirement for city

employees upheld as rational requirement for purposes

of due process and equal protection clause and not to

effect an impairment of right of interstate travel) Sununu,

v. Stark, 383 F.Supp. 1287 (D. N.H. 1974) (three judge

court) aff’d 420 U.S. 958 (1975) (upholding seven year

residency requirement for Senate candidates); Chimento

v. Stark, 353 F.Supp. 1211 (D. N.H.) (three judge court)

aff'd 414 U.S. 802 (1973) (upholding seven year resi-

dency requirements for gubernatorial candidates). And

see Deason v. United States District Court for the Dis-

trict of New Mexico, 574 F.2d 504 (10th Cir.) cert. denied

439 U.S. 866 (1978) (Federal District Court residency

requirement upheld as not violative of right to inter-

state travel); Aronson v. Ambrose, 479 F.2d 75 (3rd

Cir.) cert. denied 414 U.S. 854 (1973) (Virgin Island

District Court Rule imposing pre and post-bar admission

residency requirement upheld). See also Hawkins v. Moss,

503 F.2d 1171 (4th Cir. 1974) cert. denied 420 U.S. 928

(1975) (refusal of South Carolina to grant admission as

a matter of reciprocity to New Jersey lawyer because

of New Jersey’s nonreciprocity policy upheld as not con-

13

stituting denial of equal protection or privileges and im-

munities).*

The New Jersey Court Rule for similar reasons must

be viewed as grounded upon reasonable, if not compelling,

factors warranting denial of the privilege of practice in

the State courts to non-residents such as appellant who

have failed to demonstrate any intent to maintain sub-

———9

*In this regard, the reference by Mr. Justice Washington sitting

as Circuit Justice in Corfield v. Coryell, 6 F. Cas. 546, 552 (C.C.

E.D. Pa. 1825) to the State’s inability pursuant to the Privileges

and Immunities Clause to interfere with the “right of a citizen

of one State to pass through, or to reside in any other state, for

purposes of trade, agriculture, professional pursuits, or otherwise;

. »” see also Baldwin v. Montana Fish and Game Comm'n, 436

USS. 371, 384 (1978), is improperly read, see e.g. Sheley v. Alaska

Bar Association, 620 P.2d 640 (Alas. S.Ct. 1980) as preclud-

ing imposition of differing requirements for bar admission as_be-

tween residents and non-residents. See Hawkins v. Moss, supra

at 1178-1180. It should be further noted that the opinion issued

in Jensen v. Murphy, Civil No. HM80-608 (D. Md. 1980) and

relied upon by appellant herein in this contention is without any

precedental value since it has been withdrawn. Furthermore, ap-

pellant’s reliance upon Gordon v. Committee on Character and Fit-

ness, 48 N.Y.2d 266, 397 N.E.2d 1309 (Ct. App. 1979) in sup-

port of its privileges and immunities and commerce clause argu-

ments is misplaced. Even assuming the correctness of that rul-

ing in view of Leis v. Flynt, supra, the New York Court of Ap-

peal decision as to the unconstitutionality of a six month pread-

mission durational residency requirement provides scant assistance

in evaluating New Jersey’s post-admission substantial contact re-

quirement. Equally unpersuasive in the context of State regula-

tion of the legal profession and as to the particular requirement

challenged herein is the decision in Underhill Associates Inc. v.

Coleman, 504 F.Supp. 1147 (E.D. Va. 1981), invalidating a Vir-

ginia statute regulating out of state security brokers.

eo

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14

stantial contacts with the State.* Thus, while persons

such as appellant have demonstrated through the admis-

sions process a threshold knowledge of New Jersey law,

their non-residency and insubstantial professional presence

in the State does not guarantee or suggest any future

commitment to continue to keep abreast of developments

in New Jersey law and practice. See Brown v. Supreme

Court of Virginia, supra, 359 F.Supp. at 561. To the

contrary, however, the Supreme Court of New Jersey

could presume that those residents of the State, although

practicing in other states, would be exposed and would

maintain a greater familiarity with developments in State

law and practice. Similarly, it would follow that the

courts’ and clients’ opportunity and ability to contact

personally lawyers residing in New Jersey would be greater

than those attorneys such as appellants whose presence

in the State is unpredictable if not non-existent. More-

over, it could reasonably be determined that

“Tt]he high ethical standards of an attorney can best

be maintained after practice begins if all members

of the bar have a stake in the community. Lawyers

are frequently leaders in the community and a resi-

dent attorney will have a continuing interest in the

*In adopting the “principal office for the practice of law” re-

quirements for non-domiciliaries, the Supreme Court of New Jer-

sey obviously intended to employ a flexible test to evaluate the

extent and adequacy of the non-domiciliary’s contact with New

Jersey. The liberality of the Court’s interpretation of this require-

ment however is unknown. The lack of any State court applica-

tion of the rule to a particular fact pattern to guide this Court

is compounded by the absence herein of any facts regarding the

extent of appellant’s professional contact with the New Jersey

courts or residents. What is presented is merely appellant’s con-

clusions that she maintains a “bona fide” but not “principal office”

in the State.

¢%

js

15

success of local society and the quality of community

life by reason of the fact that his family generally

resides in the area. Moreover, the residence rein-

forces the attorney’s interest in his reputation, ...

[t]here are attorneys admitted to practice who some-

times are subject to rather dubious ethical acts, and a

resident attorney may be confronted with informal

community sanctions which may be effective even

though formal sanctions are not taken. While it is

acknowledged that an attorney may reside and work

in separate locales within the state, the vast majority

of the attorneys are an integral part of the commu-

nity wherein they maintain an office. Brown v. Su-

preme Court of Virginia, supra, 359 F.Supp. at 561.

A substantial nexus therefore exists between the compe-

tency and responsibility of a bar and the principal legal

office requirement imposed as a condition of plenary ad-

mission of nonresidents to the New Jersey bar.

The State’s broad discretion in regulating the legal pro-

fession necessarily extends to existing problems or con-

cerns or those it believes likely to result. See Jn re Primus,

436 U.S. 412, 438-439 (1978). Similarly, the propriety of

its regulation of the legal profession in order to protect

the public interest must be measured by the overall appli-

cation and not individual inequalities resulting from the

adopted classification. See Martin v. Walton, supra. Since

the challenged New Jersey rule draws reasonable distine-

tions among classes of attorneys with differing contacts

with the State and advances substantial legitimate inter-

ests of the State in creation of a competent and responsi-

ble bar, appellant’s equal protection challenge must be

viewed as without merit.

Nor, as appellant maintains, does the rule effect an im-

permissible burden on interstate commerce. It is, of course,

J

16

firmly established that notwithstanding the affirmative

grant of authority to Congress as to interstate commerce,

the states retain “broad power” to legislate in matters of

local concern pursuant to reserved Tenth Amendment

powers even if interstate commerce is incidentally and

significantly affected. See e.g. H.P. Hood & Sons v. Dum-

mond, 336 U.S. 525, 531-532 (1949). As stated in Prke v.

Bruce Church, 397 U.S. 187, 142 (1970) and reaffirmed in

Hughes v. Oklahoma, 441 U.S. 322, 331 (1979), “Where the

challenged law regulates evenhandedly to effectuate a legi-

timate local public interest, and its effects on interstate

commerce are only incidental it will be upheld unless the

burden imposed on such commerce is clearly excessive in

relation to the putative local benefits ...” Here, the Su-

preme Court of New Jersey’s bar admission rules are uni-

formly applicable to all applicants. Both New Jersey resi-

dents and out-of-state applicants once they have satisfied

bar examination and character requirements are presented

with identical alternatives, either: 1) maintain or establish

residency and thereafter establish a bona fide law office in

New Jersey; or 2) if domicile in New Jersey will not be

maintained or established, establish a principal law office

in the State. And as noted previously, the underlying basis

for the requirement—substantial contact in the State—is

obviously a legitimate goal to require of the State’s attor-

neys. Consequently, even assuming that the requirement as

applied to attorneys who chose to reside out of state im-

poses some burden upon interstate commerce that burden

may not be viewed as excessive nor without resulting sub-

stantial benefit to legitimate State concerns. Appellant’s

claims of undue burden upon interstate commerce must

therefore fail.

In sum, the Court’s review of this appeal is unwarranted

prior to completion of pending proceedings before the Su-

preme Court of New Jersey where the constitutionality

17

and desirability of continued enforcement of the challenged

rule are likely to be considered. Additionally, since the

federal constitutional questions raised herein are without

substantial merit or otherwise improperly raised in the

first instance herein, the appeal should be dismissed.

CONCLUSION

For the above stated reasons, this appeal should be

dismissed as the constitutional challenge should not be

considered by the Court in advance of pending State

court proceedings or alternatively because the consti-

tutional questions presented lack of sufficient merit to

warrant plenary review. Additionally, this Court lacks

jurisdiction to consider the contention as to violation

of the Privileges and Immunities Clause of the Four-

teenth Amendment since that argument was not properly

raised or expressly passed upon below.

Respectfully submitted,

James R. Zazzat,

Attorney General of New Jersey,

Attorney for Appellee, Supreme Court

of New Jersey,

By: Anprea M. Si_kowrTz,

Deputy Attorney General.

[ApPenpices Fottow]

>

-

APPENDIX A

New Jersey Supreme Court Rules 1:12-1 and 1:21

SupreME Court Rutes 1:12-1

(1968)

Cuapter V. Practice or Law, ArtoRNEYS AND COUNSELLORS;

CERTIFICATES OF ADMISSION

Rue 1:12. Pracrice or Law; ATrorNEYsS AND COUNSELLORS

1:12-1. Practice of Law; Appearances in Court

(a) No person shall practice law in this State, except

as provided in paragraph (c) of this rule, unless

(1) he has been admitted to practice as an attorney at

law of this State and is in good standing; and

(2) he is domiciled in this State; and

(3) he has fulfilled the requirements of Rule 1:20-7 and

has been issued a certificate of plenary admission to the

bar.

(b) No attorney admitted to practice in this State shall

permit another person to practice in this State in his

name or as his partner, employee or associate unless such

other person satisfies the requirements of paragraph (a)

of this rule or is his duly registered law clerk practicing

pursuant to Rule 1:12-8A.

(c) No person shall be permitted to appear to prosecute

or defend an action in any court of this State unless:

(1) he satisfies the requirements of paragraph (a) of

this rule, or

[la]

'%

2a

Appendix A

(2) he is a party to the action, or is the guardian of a

party to the action; or

(3) he has been admitted to speak, pro hac vice, pursu-

ant to Rule 1:12-8; or

(4) he is a law clerk, law school student or law school

graduate practicing within the limits prescribed by Rule

1:12-8A.

(d) Any person appearing in any action shall be under

the control of the court in which he appears.

(e) A corporation shall not practice law in this State,

nor shall it appear or file any paper in any cause in any

court of this State except through an attorney authorized

by paragraph (a) of this rule to practice in this State.

(f) The fact that an agent or employee of an individual,

or an officer, trustee, director, agent or employee of a cor-

poration shall be an attorney authorized to practice in this

State shall not be held to entitle said individual or cor-

poration to do any act prohibited by these rules.

Note: Effective September 9, 1953; paragraph (a) amended

June 28, 1954 to be effective September 8, 1954; amended May

11, 1959 and July 20, 1959 to be effective September 9, 1959;

paragraph (c) amended August 13, 1964 to be effective Septem-

ber 9, 1964. Formerly Rule 1:8-21.

*%

-*%

3a

Appendix A

Cuaprer IIT. Practice or Law anp ApMmission TO PRACTICE

Rue 1:21. Practice or Law (1969)

1:21-1., Who May Practice; Appearance in Cowrt

(a) Qualifications. No person shall practice law in this

State unless he is an attorney, holding a plenary license to

practice in this State, is in good standing, and is either

domiciled in this State or maintains in this State his prin-

cipal office for the practice of law; provided, however, that

a person shall be permitted to appear and prosecute or

defend an action in any court of this State if he (1) isa

real party in interest to the action or the guardian of the

party; or (2) has been admitted to speak pro hac vice pur-

suant to R. 1:21-2; or (3) is an attorney holding a certi-

ficate of limited admission, a law clerk or a law student or

law graduate practicing within the limits of R. 1:21-3. No

attorney authorized to practice in this State shall permit

another person to practice in this State in his name or as

his partner, employee or associate unless such other person

satisfies the requirements of this rule.

r%

4a

APPENDIX B

News Release, dated May 15, 1980

ADMINISTRATIVE OFFICE OF THE CoURTS

Strate oF New JERSEY

Robert D. Lipscher

Administrative Director

of the Courts

Judicial Information Services

State House Annex

Trenton

New Jersey

08625

609 292-9580

May 15, 1980

For IMMEDIATE RELEASE

Chief Justice Rebert N. Wilentz announced today that

the Supreme Court would shortly name a Committee to

Evaluate Bar Admission Requirements. The Chief Justice

indicated that, although the Board of Bar Examiners had

already begun a study of the bar examination based on the

February 1979 examination as part of the Board’s periodic

assessment of the process, the Court’s concern over the de-

clining pass rate, along with the public comments gener-

ated by the results of the July 1979 bar examination, sug-

gested that an in-depth analysis of the entire bar examina-

tion procedure be conducted. Members of the Committee

will include former and present members of the Board of

Bar Examiners, together with members of the bar and

others. |

7%

i

°.

da

Appendix B

The basic task of the Committee will be to determine

whether the present bar examination procedures adequate-

ly fulfill their dual goals of assuring that only those quali-

fied to practice law pass the bar examination and, at the

same time, that none who are indeed qualified fail. The

Committee will be asked to recommend any changes it

deems desirable in the examination and related procedures.

The Chief Justice said:

“The Supreme Court has noted recent comments made

about the decline in the percentage of those who pass the

bar. Those comments suggest a deep concern as to whether

the bar examination is properly fulfilling its role in the

admission process or whether it is unjustifiably prevent-

ing some qualified candidates from becoming lawyers. We

share those concerns. Further, we agree that the matter

needs thorough study. For that purpose and in the exer-

cise of our constitutional responsibility over admissions

to the bar, the Court will soon appoint a Committee to

examine every aspect of the bar admission process includ-

ing some of its underlying assumptions.

“Tn a general sense, the most important function of this

Committee will be to determine whether the examination

as presently designed provides an acceptable standard for

determining who shall, and who shall not, be admitted to

the practice of law. More specifically, the essay portion

of the examination will be reviewed to determine, for ex-

ample, whether it is too complex, as some have asserted,

or whether the number. of questions should be changed.

The Multi-State Bar Examination (MBE), a uniform mul-

tiple choice examination administered throughout the coun-

try, will be evaluated. A question to be addressed relating

to the MBE is whether the automatic passing grade for

New Jersey is too high.

A

6a

Appendix B

“The Committee will be asked to define as precisely as

possible—and the Court realizes this is most difficult—the

standard of competence which the examination ought to

measure and the extent to which it achieves that purpose.

In all of these matters the Committee will be asked to look

at the experience of other states, especially those which

have recently studied admission procedures.

“We will also ask the Committee to express its views on

the concern expressed by some that perhaps the bar ex-

amination is unjustifiably limiting the number of attorneys

in New Jersey, contributing both to the unavailability and

high cost of legal services. This is obviously an extremely

complicated question involving, as it does, the relation-

ship between appropriate standards for admission to the

bar and the number of attorneys available to the public.

The Committee will have to consider and report to the

Court on such.fundamental issues as whether the need,

if any, for more attorneys is so pressing that the stand-

ards for admission should be lowered and whether such

a lowering of standards will necessarily result in the ad-

mission of attorneys not otherwise qualified to practice in

this State.

“The Committee will also be asked to look into the train-

ing of bar candidates to determine whether changes in

training, in and out of law school, are called for, either

separate from, or in conjunction with, changes in the bar

examination. Furthermore, the Committee will report on

other matters affecting the number of attorneys admitted,

such as post-admission residency requirements, the recog-

nition to be given admission or examination in other states,

and the like. In connection with all of the foregoing, the

Committee will be able to retain outside consultants to as-

sist it, where appropriate.

°»

- |

Ta

Appendiz B

“The Court has examined at length many of the questions

raised subsequent to the announcement of the results of

the July 1979 bar examination. We have received a great

deal of information from the Board of Bar Examiners and

have met with them as well as with others, including for-

mer bar examiners, deans of law schools, the Attorney

General and other individuals, all of whom are deeply in-

terested in these matters. Based on all of those meetings,

as well as the analysis of the information that has been

provided to the Court through its Clerk’s Office and the

Administrative Office of the Courts, the Court is convinced

that there is not only sufficient cause but a real necessity

to undertake the kind of study about to be initiated.

“There is absolutely no doubt on the part of the Court

that the present Board of Bar Examiners has conscien-

tiously upheld the high standards that have characterized

the New Jersey Board for many years. It has been one

of the most highly regarded Boards in the country. It is

clear to the Court that the Board has consciously continued

its efforts to design and grade the examination on a totally

objective basis without regard to any arbitrary pass rate.

The Board’s sole motivation has, in fact, been to ensure

that no one will be allowed to practice law in New Jersey

who is not qualified to do so.

“Accordingly, the Court’s decision to form this Commit-

tee cannot be taken as any implication of lack of confidence

in this extremely competent, hard-working Board. Rather,

it reflects our belief that no institution, no matter how

well intentioned, is perfect and that when legitimate ques-

tions are raised, they should be investigated and answered

with a completely open mind.”

8a

APPENDIX C

Notice of Petition to the Supreme Court of New Jersey

SUPREME COURT OF NEW JERSEY

Docket No. 18,361

Crvm AcTION

hp.

—_

JAY MARK SACKMAN,

Petitioner,

v.

SUPREME COURT OF NEW JERSEY, et al.,

Respondents.

To: James R, Zazzaui

Attorney General of New Jersey

Attorney for Respondents —

Attention: Ricnarp M, HiucHan

Deputy Attorney General

36 W. State Street

Trenton, New Jersey 08625

Sir:

NoTICE IS HEREBY GIVEN that Petitioner, Jay Mark Sack-

man, has filed a Petition with the Supreme Court of New

Jersey to review the constitutionality of R. 1:21-1(a) and

for such other relief as is set forth in such Petition, a copy

>

‘

*®

9a

Appendix C

of which was filed and was served upon you on March 18,

1981.

Ciapp & EIsENBERG

A Professional Corporation

Attorney for Petitioner

By: Stuart L. PacomMan

Dated: April 1, 1981.

Of Counsel:

Pryor, Cashman, Sherman & Flynn

New York, New York

CERTIFICATE OF SERVICE

I hereby certify that I caused a true copy of the within

Notice of Petition to be sent to Richard M. Hluchan, Deputy

Attorney General, Attorney for Respondents, addressed

to 36 West State Street, Trenton, New Jersey 08625, by

first class United States prepaid mail on April 1, 1981.

Sruart L. PAcHMAN

Dated: April 1, 1981.

10a

EX1LJBIT D

Response to Petition Filed in the Supreme Court of

New Jersey

292-8576

April 24, 1981

Stephen W. Townsend, Esq.

Clerk, Supreme Court of New Jersey

State House Annex

Trenton, New Jersey 08625

Re: Sackman v. Supreme Court of New Jersey

Docket No. 18,361

Dear Mr. Townsend:

Pursuant to R. 2:6-2(b), please accept this response to

the “Petition to Declare R. 1:21-1(a) Unconstitutional and

Unenforceable and for its Rescission 6r Modification” filed

in this matter. Because this matter involves a constitu-

tional callenge to a rule adopted by the Supreme Court

of New Jersey, the Attorney General agrees that it is

appropriate for the Court to directly hear the petitioner’s

claim. Accordingly, it is submitted that the Court should

grant certification of this matter and set a briefing sched-

ule which will allow the parties adequate time to set forth

their positions on the merits. See In Re LiVolsi, N.J.

—— (1981).

It is my understanding that a committee chaired by Jus-

tice Jacobs is currently considering proposals to amend

various Court rules, including R. 1:21-1(a), and that the

committee’s report will be filed by the end of July. Since

the Court and the parties would obviously wish to have

e~

i

lla

Appendix D

the benefit of this report in considering this matter, it

would appear reasonable to consider the date of avail-

ability of the anticipated report in fixing a briefing schedule.

JAMES R. Zazzavt

Attorney General of New Jersey

Richard M. Hluchan

Deputy Attorney General

RMH :mmb

ec: Stuart L. Pachman, Esq.

-%

12a

APPENDIX E

Excerpt from Interim Report of the Supreme Court

Committee to Evaluate Bar Admission Requirements,

dated May 6, 1981 (pp 69-72)

E. Residency Requirements

23. R. 1:21-1(a) Srares tHat “[N]o Person SHarti Prac-

TICE LAW IN THIS STATE UNLESS HE IS... ErrHer Domt-

CILED AND Maintains A Bona Fine Office For THE PRac-

Tice oF Law IN THIS Stave or, 1F Nor DomiIciLED IN THIS

Strate, MAINTAINS IN THIS State His PrincrpaL OFFICE FOR

THE Practice oF Law.” THe Basic Resmency anp OFFICE

REQUIREMENTS Set FortrH 1n TH1is Rute SHOULD BE RE-

TAINED.

a. R. 1:21-1 SHovuLtp BE AMENDED TO INCLUDE THE FOL-

LOWING DEFINITION OF “Bona FIDE OFFICE”’:

Bona F'mz Orrice. For THE Purpose oF THIS RULE,

A Bona Five Orrice is A PLACE WHERE THE ATTOR-

NEY OR A RESPONSIBLE PERSON ACTING ON HIS BEHALF

CAN B \.EACHED IN PERSON AND BY TELEPHONE Dvr-

ina Normau Business Hours. A Bona Five OFFICE

1s More THAN A Mart Drop, A SumMerR Home WHiIcH

1s UnatrenpeED Durinc A SuBsTANTIAL PorTION OF

THE YEAR, OR AN ANSWERING SERVICE UNRELATED TO

A Pitace WHERE Business 18s CoNDUCTED.

Commentary: Currently, all but 11 states and the District

of Columbia have some type of residency requirement as

a condition to practicing in their jurisdictions. The Com-

mittee believes that New Jersey’s requirement of either a

domicile and bona fide law office or a principal office for

of Law Examiners, 42 F.Supp. 1082 (D. Md. 1979); Suff-

?

13a

Appendix E

the practice of law, as set forth in /. 1:21-1(a), should be

retained. These requirements are reasonable means to en-

sure that attorneys practicing in New Jersey remain ac-

countable to authorities in this State, and readily accessible

to opposing counsel and to their clients. The rules also

tend to ensure that attorneys who practice in New Jersey

are familiar with local custom as well as recent develop-

ments in local law.

Recent cases have held that requiring a candidate to

maintain a residence in a state for a period of time prior

to admission to the state’s bar is unconstitutional. Gordon

v. Committee on Character and Fitness, 48 N.Y .2d 266, 397

N.E.2d 1309 (1979) (rule requiring that applicant be a resi-

dent for six months immediately preceding the submission

of his application for admission to practice violates privi-

leges and immunities clause of U.S. Const., Art. IV, §2, el.

1); Sheley v. Alaska Bar Assn., 620 P.2d 640 (Alaska Su-

preme Court 1980) (rule requiring applicants to be domi-

ciled in state for at least 30 days prior to taking bar ex-

amination violates privileges and immunities clause of U.S.

Const., Art. IV, §2, el. 1); contra, Golden v. State Board

of Law Examiners, 452 F.Supp. 1082 (D. Md. 1979) ; Suff-

ling v. Bondurant, 335 F.Supp. 257 (D. N.M. 1972), aff’d

mem. sub nom., Rose v. Bondurant, 409 U.S. 1020 (1972).

Unlike the rules which were held unconstitutional, New

Jersey’s rules do not require residency at all and do not

force a candidate residing in another state to move to

New Jersey before being able to practice in this State.

The rules are reasonable means to achieve important ob-

jectives and should be able to withstand constitutional

challenge.

a. The Committee believes that the “bona fide office” re-

quirement in R. 1:21-1 is subject to abuse, and that certain

“her,

l4a

Appendia E

minimal standards for satisfying the requirement should be

made part of the rule. The proposed amendment sub-

mitted by the State Bar Association to the Chief Justice

would be suitable for this purpose.

b. The phrase “his principal office” implies that an attor-

ney can only have one principal office. In a situation where

an attorney divides his time and energy between offices

in two states, deciding which is his principal office can lead

to a rather arbitrary determination.

The number of hours he spends at each office, the num-

ber ef clients serviced at each office and the amount of in-

come derived from each office could be used as guidelines

in making this determination. However, an office which

satisfies one or all of these criteria might be no better

equipped to handle a New Jersey case than an office which

technically does nut meet such guidelines.

Instead, the Committee recommends that the principal

office rule be applied flexibly so that an attorney who prac-

tices out of offices in New Jersey and in another state be

deemed to have satisfied the requirement, as long as his

practice in New Jercey is not subordinated to his practice

in another state.

The Committee considered recommending the modifica-

tion of the principal office requirement to a substantial

office requirement. However, a substantial office could be

interpreted as a place where an attorney spends as little

as several days a month. Such a practice would be clearly

secondary to the attorney’s out-of-state practice, and might

not adequately serve the policies previously discussed.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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