Amicus Curiae Brief — Supreme Court of Va. v. Friedman

No. 87-399 |

IN THE

Supreme Court of the United

OctotreR TERM, 1987

SUPREMF: COURT OF VIRGINIA,

and its Clerk, DAVID B. BEACH,

Appellants,

v.

MYRNA E. FRIEDMAN,

Appellee.

ON APPEAL FROM THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF THE NEW YORK STATE BAR

ASSOCIATION AS AMICUS CURIAE

IN SUPPORT OF APPELLEE

MARYANN SACCOMANDO FREEDMAN, Esq.

President, New York State Bar Association

MonroE H. FREEDMAN, Esq.

One Elk Street

Albany, New York 12207

(518) 463-3200

Ronap J. Levine, Esq.

2 Park Avenue

New York, New York 10016

(212) 684-1400

Counsel of Record

'

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIEFS................... iii

INTEREST OF AMICUS CURIAE ............. l

I cap ach een scscisvuneaxess 2

SUMMARY OF ARGUMENT.................. 2

I nic oa chvcnehbinvdasnoune sens 3

THE PRIVILEGES AND IMMUNITIES

CLAUSE PREVENTS A STATE FROM USING

A BAR EXAMINATION TO PUT AN

UNREASONABLE BURDEN ON PRACTICE

BY OUT-OF-STATE ATTORNEYS........... 3

at ARE SREP Sake ee ee ne 6

TABLE OF AUTHORITIES

Cases:

Frazier v. Heebe, 107 S.Ct. 2607 (1987).........

Friedman v. Supreme Court of Virginia, 822 F.2d

423 (4th Cir.), prob. juris. noted, Supreme

Court of Virginia v. Friedman, 108 S.Ct. 283

tie cke esses neecce sce.

Supreme Court of New Hampshire v. Piper, 470

re

Statutes and Rules:

New York State Court of Appeals Rule § 520.9...

Other Authorities:

Hafter, Toward the Multistate Practice of Law

Through Admission by Reciprocity, 53 Miss.

ruta cheese se cedeceuses«

Lauter, Waiving Into Another Bar Isn't Always a

Real Breeze, National Law Journal, Mar. 17,

ec ceunecndeees

Page

No. 87-399

IN THE

Supreme Court of the Wniixd States

Ocroser TERM, 1987

SUPREME COURT OF VIRGINIA,

and its Clerk, DAVID B. BEACH,

Appellants,

Vv.

MYRNA E. FRIEDMAN,

Appellee.

ON APPEAL FROM THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF THE NEW YORK STATE BAR

ASSOCIATION AS AMICUS CURIAE

IN SUPPORT OF APPELLEE

Amicus Curiae, New York State Bar Association, respectful-

ly requests this Court to affirm the decision of the Fourth Cir-

cuit Court of Appeals.

INTEREST OF AMICUS CURIAE

Amicus Curiae, the New York State Bar Association

(“NYSBA’”), is a voluntary bar association primarily composed of

members of the bar of the State of New York. The NYSBA has

approximately 47,000 members, including lawyers who are

engaged in the practice of law in the private and public sec-

tors, as well as judges, professors and law students.

The NYSBA seeks to promote rules and procedures concern-

ing admission to the bar which are fair and equitable, while

maintaining a high standard of competence. The rules of ad-

mission in New York State permit attorneys who have practic-

ed for a fixed number of years in another state to join the bar

of the State of New York by motion and without having to take

a bar examination. New York State Court of Appeals Rule §

520.9. The NYSBA believes that the bar of the State of New York

has flourished under its open admission rules, and the NYSBA

is opposed to barriers to admission not only in New York, but

in other states as well in which New York attorneys may wish

to practice.

The challenged requirements are another example of artificial

barriers to bar admission which promote the economic interests

of local lawyers at the expense of rational and just bar admis-

sion. This case is therefore of great interest to the members of

the NYSBA.

JURISDICTION

The jurisdictional grounds are fully set forth in the Brief of

the Appellee and need not be set forth here again in accordance

with Rule 36.5 of this Court.

SUMMARY OF ARGUMENT

The nature and reality of the practice of law in the United

States is that an attorney often needs to represent clients in a

number of states, and may wish to establish offices in two or

more states. The courts below correctly set aside Rule 1A:1(c)

as unconstitutional discrimination. Virginia’s Rule employs the

bar examination requirement as an artificial and unnecessary

barrier to the admission of nonresident attorneys. Virginia

discourages experienced out-of-state attorneys from joining its

bar by requiring that the experienced attorneys take another

bar examination, or move into the state and practice there on

a full-time basis.

The Appellee has ‘ully briefed the issues surrounding the vioia-

tion of the Privileges and Immunities Clause. The NYSBA wishes

to emphasize to the Court that the bar examination require-

ment has been used by some states as an improper mechanism

to limit competition by experienced attorneys from other states.

ARGUMENT

THE PRIVILEGES AND IMMUNITIES CLAUSE

PREVENTS A STATE FROM USING A BAR EX-

AMINATION TO PUT AN UNREASONABLE

BURDEN ON PRACTICE BY OUT-OF-STATE

ATTORNEYS

According to the Appellants, twenty-three jurisdictions

recognize that it is not necessary to re-examine lawyers qualified

in other states in order to admit them to the bar. Appellants’

Brief, at page 9. These jurisdictions, which include New York,

have found that attorneys who have demonstrated their profes-

sional abilities in practice in other jurisdictions are fully com-

petent to practice law without being subjected to the needless

burden of a bar examination.

Experienced attorneys should be admitted by motion no mat-

ter where they reside or where they have practiced. There has

been a marked trend toward uniformity of both substantive and

procedural laws throughout the United States. All states, except

one, have adopted the Uniform Commercial Code. Model codes,

model rules and the Restatements have become a common

language for all lawyers. Federal law, whether it be tax, criminal,

labor or environmental, is a significant part of the common prac-

tice of all lawyers.

Whether it is due to a lawyer's decision to move to another

state, or an out-of-state client or matter, today’s lawyer may well

represent clients in states other than those in which he or she

began practice. Indeed, the Court has recognized the value of

a nonlocal lawyer to a client:

A client may have a number of excellent reasons to

select a nonlocal lawyer: his or her regular lawyers

most familiar with the legal issues may be nonlocal;

a nonresident lawyer may practice a specialty not

available locally; or a client may be involved in an

unpopular cause with which local lawyers are reluc-

tant to be associated. See Piper, 470 U.S., at 281, 84

L.Ed. 2d 205, 105 S.Ct. 1272.

Frazier v. Heete, 107 S.Ct. 2607, 2614 n. 12 (1987).

Pro hac vice admission is often not a satisfactory alternative

to plenary admission. Such admission applies only to court ap-

pearances, not to counseling. Further, states have made pro hac

vice admission a difficult, if not impossible, undertaking. The

Court has observed that pro hac vice admission is purely discre-

tionary and not a freely available alternative. Frazier v. Heebe,

107 S.Ct. 2607, 2614 n. 13 (1987); Supreme Court of New Hamp-

shire v. Piper, 470 U.S. 274, 277 n. 2 (1985).

As the Fourth Circuit held, the costs, time and delay involv-

ed in taking a bar examination impose a heavy burden on the

out-of-state practitioner. Friedman v. Supreme Court of

Virginia, 822 F.2d 423, 427 (4th Cir.), prob. juris. noted,

Supreme Court of Virginia v. Friedman, 108 S.Ct. 283 (1987).

The bar examination has been employed as a form of economic

protectionism to deter out-of-state attorneys from entering the

local legal markets. Id. See also Supreme Court of New Hamp-

shire v. Piper, 470 U.S. 274, 285 n. 18 (1985) (“ “Many of the

states that have erected fences against out-of-state lawyers have

done so primarily to protect their own lawyers from professional

competition’ ”). Indeed, the Appellants themselves have express-

ed their concern that if Virginia's restrictive rule is lifted: “the

number of reciprocity admissions in Virginia would skyrocket...".

Brief of Appellants, filed with Fourth Circuit, at p. 22.

uw

While the NYSBA does not quarrel with each state's right to

impose its own standards for bar admission, the NYSBA opposes

the use of bar examinations as a mechanism to restrict the

delivery of legal services. One legal commentator has observed

that:

States recognizing no reciprocity and states requiring

special attorneys’ bar examinations fall almost entirely

into two categories: (1) states in the Southeast or the

Far West and (2) states in the Northeast, which serve

as “bedroom” or “second home” areas for attorneys

from nearby major legal centers. It is apparent that

the states restricting admission by reciprocity are

jurisdictions in which the local bar is subject to the

potential influx of attorneys admitted in othr jurisdic-

tions because of expanding populati a, economic

growth, or the movement of attorneys into suburban

areas, second home, or retirement communities. /t has

been asserted, with justification, that those states that

have made the admission of attorneys most difficult

have done so primarily to protect the economic in-

terests of the local bar.

Hafter, Toward the Multistate Practice of Law Through Admis-

sion by Reciprocity, 53 Miss. L.J. 1, 5-6 (1983) (feotnotes omit-

ted; emphasis added).

Members of the New York State bar have complained to the

NYSBA about our neighboring state of New Jersey which re-

quires that experienced attorneys pass the New Jersey bar ex-

amination. New Jersey cannot even argue that its examination

is required so that all attorneys are proficient in local law. The

New Jersey examination, which is basically a multistate examina-

tion, does not require knowledge of New Jersey 'aw on the part

of the examinee. Clerk of the Supreme Court of New Jersey, Ad-

mission to the Bar (March 1987) (“[wJhile knowledge of New

Jersey law will not be critical to success on the examination,

familiarity with new law or distinctive cases will aid you in

preparing your responses to the questions”) A former President

of the New Jersey State Bar Association has reportedly admitted

that the main argument in favor of restrictive rules is “protec-

tionism,” and has been quoted as follows: “New Jersey is [Ben-

jamin} Franklin’s keg tapped at both ends. The concern for the

Newark lawyers is that i: >» York lawyers will simply come in

and treat Newark as a sixth borough, and in the southern part

of the state the concern is over Philadelphia lawyers.” Lauter,

Wiiving Into Another Bar Isn't Always a Real Breeze, National

Law Journal, Mar. 17, 1986, at 1, 32.

In response to a recent NYSBA request that New Jersey adopx

motion admissions, anocher former President of the New Jersey

State Bar Association wrote the NYSBA that his Association's

Board had voted against motion admission because: “One of our

main problems is that we are sandwiched between New York

City and Philadelphia. There are currently 30,742 lawyers ad-

mitted to practice in our state and the Board felt that in good

conscience they could not support your proposition.” Letter from

J.L. White to NYSBA, dated May 22, 1986 (Appendix A hereto).

CONCLUSION

The Virginia Rule at issue employs the bar examination re-

quirement as an artificial and unnecessary barrier to the ad-

mission of nonresident attorneys. The decision of the court below

should be affirmed.

Respectfully submitted,

MARYANN SACCOMANDO FREEDMAN, Esa.

President. New York State Bar Association

Monroe '° FREEDMAN, Eso.

One Elk et

Albany, | -v York 12207

(518) 463-3.'00

RONALD J. Le ‘INE, Eso.

2 Park Avenu

New York, New ‘«rk 10016

(212) 684-1400

Counsel of Recorc

February 4, 1988

APPENDIX

2 nO Ee Re mT Oe Ean a

A-l

APPENDIX A

NEW JERSEY

STATE BAR ASSOCIATION

Headquarters 172 WEST STATE STREET, TRENTON, N.J. 08608

609-394-1101

May 22, 1986

New York State Bar Association

600 First Federal Plaza

Rochester, New York 14614

Attention: Justin L. Vigdor, Esquire

Dear Justin:

I discussed your letter of April 21, 1986 with our Board of

Trustees at a regular meeting on May 15, 1986.

After a lively discussion, the Board voted against supporting

motion admissions in New Jersey. I believe this is consistent with

earlier positions which other Boards have taken.

One of our main problems is that we are sandwiched between

New York City and Philadelphia. There are currently 30,742

lawyers admitted to practice in our state and the Board felt that

in good conscience they could not support your proposition.

Best personal regards,

Sincerely,

John L. White

JLW: tk

ce: Raymond R. Trombadore, Esquire

Dalton W. Menhall, Esquire